UNIVERSITY OF MINNESOTA
LAW SCHOOL
Public Law and Legal Theory Research
Paper Series
Research Paper No. 03-1
Legal Positivism
Brian Bix
This paper can be downloaded without charge from the
Social Science Research Network Electronic Paper Collection at:
http://ssrn.com/abstract_id=369782
1
Chapter 2: Legal Positivism
1. History and Context
The history of ideas is often written in terms of schools of thought, that come in and out of
fashion, that prevail in struggles over particular issues, or are defeated. In legal philosophy as elsewhere
in the history of ideas, we have schools of thought that have risen and fallen, sometimes with little
explanation. Some have faded from the scene but without any obvious reason ­ such as historical
jurisprudence (whose prominent advocates included Friedrich Carl von Savigny (1779-1861) and Sir
Henry Maine (1822-1888)). As Joseph Raz has written: "Because legal theory attempts to capture the
essential features of law, as encapsulated in the self-understanding of a culture, it has a built-in
obsolescence, since the self-understanding of cultures is forever changing." (Raz, 1996, p. 6) While
some schools of thought have faded in a matter of decades, by contrast at least one approach to legal
theory, natural law theory, has been around literally for millenia, yet remains vibrant. Legal positivism is
neither thousands of years old nor the product of recent fashion. As a recognizable approach to the
nature of law, legal positivism is almost two centuries old, though aspects of the approach can be traced
back further, certainly to Thomas Hobbes (1558-1679), and perhaps even to Thomas Aquinas (1224-
1274)) (Finnis, 1994, pp. 195-200). While in some circles, legal positivism now seems the dominant
approach to the nature of law, this dominance has never meant that the approach was without critics.
This Chapter will outline the current state of legal positivism, consider major criticisms, and reflect on
what may be necessary for this approach to remain a vibrant part of the debate about the nature of law.
2
There is a danger whenever one speaks about a "school" or "general approach," and the
danger may be particularly acute with discussions of legal positivism. The risk arises from the effort to
speak in general terms about a wide variety of theorists, whose views overlap but may diverge sharply
on any particular question. As will be mentioned later, some quite distinct approaches to law share the
label "legal positivism," and any effort to create a quick summary representation of the approach faces
the chance of constructing a weakened perspective and one that no single theorist would adopt in full.
(Raz, 1998, p. 1) Nonetheless, an effort will be made to speak about this collection of theories and
theorists, making all efforts to be respectful of the differences between the theorists that share this label.
The first task is to place legal positivism into a historical context: one that refers both to its own
history of development, and to the larger history of ideas within which it evolved. The usual summary of
legal positivism comes from a few lines stated in 1832 by John Austin (1790-1859), the person
frequently seen as the founder of legal positivism:
The existence of law is one thing; its merit or demerit is another. Whether it be
or not be is one enquiry; whether it be or be not conformable to an assumed standard,
is a different enquiry. A law, which actually exists, is a law, though we happen to
dislike it, or though it vary from the text, by which we regulate our approbation
and disapprobation. (Austin, 1994, p. 157)
If one looks at Austin's work ­ and, similarly, if one prefers to trace the roots of legal positivism to the
early writings of Jeremy Bentham (1748-1832) (Bentham, 1970; Bentham, 1996) or the work of the
English political theorist Thomas Hobbes (Hobbes, 1996) ­ then the purpose of proposing a legal
positivist position seems straightforward: it is an effort to establish a study of the nature of law,
disentangled from proposals and prescriptions for which laws should be passed or how legal practice
should be maintained or reformed.
3
One might push a little further, and discuss how Austin (2002, vol. 2, pp. 1107-08), and, some
decades later, Hans Kelsen (1881-1973), emphasized the objective of making law into a "science"
(though, as regards Kelsen's work, it should be noted that Wissenschaft in German has a much
broader extension, and fewer implications, than "science" in English). Kelsen was reacting against
sociologists of law; he sought a way of studying law "as such," purified of history, social theory, etc.
(Kelsen, 1992, pp. 7-8) Kelsen was thereby taking the concerns of Austin and Bentham a step further:
to exclude not only practical and theoretical disquisitions about how governments should be organized,
but also to exclude more academic discussions about the history or sociology of the law, and the like.
These were times when there was great optimism that the same sort of rigor and objectivity could be
applied to the study of human behavior that had been applied to the physical sciences, and that perhaps
the same level of progress could be made. While this sort of optimistic "delusion" about the human
sciences is at least as old as the Enlightenment (e.g., Berlin, 1997, pp. 326-58), a similar sort of
optimism has dominated thinking about law at various more recent periods ­ not only in Christopher
Columbus Langdell's (1826-1906) quasi-scientific thinking about law and legal education that
notoriously grounded his new "case method" at the end of the 19th
century and the beginning of the 20th
century (see Twining, 1985, pp. 11-12), but also in the writings of American legal realists (and the
post-realists) of the early and middle decades of the 20th
century, when these writers offered "policy
science" as the way to make law "modern" and "objective."
We may treat such views as naive, or at least misguided; we may think that it only tends to hide
or disguise the political aspects of law and the inevitable biases of its commentators to use a term like
"science" which (in English at least) implies a level of objectivity and disinterestedness that we are
4
unlikely to attain in the study of how societies regulate their citizens through rules and institutions.
However, if we consider the search for a "science" of law at a more general or more metaphorical
level, the objective is simply a separate study of law ­ a study in the "scientific spirit" of independent
observation and analysis, separate from the important, but quite different, striving for legal reform and
justice. And, so understood, the objective seems neither misguided nor naive ­ though it may yet turn
out to be unobtainable.
There seems less significance (and less urgency) today than there was two hundred years ago
to an argument urging the separate study of "law as it is." We are living at a time where we are
surrounded by law schools ­ almost certainly too many rather than too few ­ devoted to the graduate-
level study of law and legal practice, and journals devoted to every aspect of law and every
conceivable approach to its investigation. It should be remembered that things were much different as
recently as 200 years ago (around the time when legal positivism had its beginnings) ­ a time when
there was little university-based legal education, either in the United States or in England. The first time
a law school appeared as a professional school within an American University was in 1817 (at Harvard
University). Prior to that date, law schools were largely proprietary institutions, set up independent of
university education ­ though there was a professorship in law somewhat earlier, at the College of
William and Mary in 1779. (Warren, 1908, vol. 1, p. 1) In England, the first university instruction in the
common law came as late as 1753, with Sir William Blackstone's Oxford University lectures
(Holdsworth, 1903-1938, vol. 12, p. 91); the first Chair in Law outside of Oxford and Cambridge was
given to John Austin in 1826, and it was Austin's lectures there that would eventually form the
foundation of modern legal positivism. (In looking at the contemporary situation, one could comment
5
that though there are now many institutions, academics, and journals devoted to law, there are arguably
few signs of a "pure science of law" or a study of law "as it is" separated sharply from "law as it ought
to be." However, that is a topic for another day.)
If legal positivism is not about the importance of the separate and "scientific" study of law, or at
least not about that today, one might wonder what its purpose and meaning is. One suspects that legal
positivism's distinctiveness and its point have become more elusive, even as it has become more
established within English-language analytical jurisprudence ... perhaps because it has become more
established in analytical jurisprudence. Maybe "we are all legal positivists now" much the way "we are
all legal realists now" ­ in both cases the approaches to law have prevailed to so great an extent that
their views have been coopted by the mainstream, leaving it hard to recall or discern what their
distinctive point is or was.
2. Clarifications
It is important, as an initial matter, to clear up what legal positivism is not. During the early
decades of the 20th
century, legal positivism was accused of advocating a wooden perspective on
judicial decision-making and legal interpretation ­ a view of legal positivism that has re-emerged with
regularity in the decades since (e.g., Cover, 1975, pp. 28-29; Sebok, 1998, pp. 17, 107), though
rarely with much basis in fact. This picture is a bad mis-characterization of legal positivism, or, at best,
a pejorative borrowing of the label for an entirely dissimilar perspective in a different area. (Bix, 1999d,
pp. 903-15) The mistake is arguably attributable to a certain American bias: because judicial review is
so important to the legal and political life in the United States, American legal theorists tend to ask of all
6
legal theories what they have to tell us about judicial reasoning in general and constitutional
interpretation in particular; and they tend to see legal theories through that lens even when the theories
do not purport to touch those subjects. (This tendency to mis-read legal theories as theories of judicial
reasoning has in fact caused misunderstandings of natural law almost as often as it has caused
misunderstandings of legal positivism. (cf. George, 1999, pp. 110-11)) Legal positivism is a theory
about the nature of law, by its self-characterization a descriptive or conceptual theory. By its terms,
legal positivism does not have consequences for how particular disputes are decided, how texts are
interpreted, or how institutions are organized. At most, the theory may have something to say about
how certainly ways of operating are characterized (is it "law" or is it, for some reason, "not law"?), but
not on how they should be evaluated or reformed.
Legal positivists have also been accused of asserting some version of "might makes right" as
applied to law. Or, the indictment softened slightly upon confrontation with the facts, critics sometimes
claimed that if the legal positivists did not actually assert such positions, this is nonetheless where their
views led. Legal positivism was attacked for causing legal professionals to be too deferential to the
State, and thus too willing to obey even unjust laws. After World War II, a strong debate ensued on
what role German legal positivism played, if not directly in the rise of the Nazis, at least in the way that
German lawyers and judges did so little to resist the creation and application of evil Nazi laws. (e.g.,
Paulson, 1994) This too reflects, at best, a misunderstanding of what is claimed and what is at stake in
the debate about legal positivism. (One should remember that most of the key early figures in legal
positivism were law reformers, not apologists for the status quo.) In the context of such accusations,
the famous 1958 debate between H. L. A. Hart and Lon Fuller (Hart, 1958; Fuller, 1958) was, to a
7
large extent, a discussion about the role that legal positivism did play, and could play, in the resistance
to evil laws and evil regimes. Some have even portrayed both theorists as trying to ground the
arguments for legal positivism and the alternatives on which approach would be best, instrumentally, in
encouraging the resistance to evil laws. (Schauer, 1994) Hart argued for what would then have been
considered a paradoxical position: that legal positivism is in fact better than natural law theory in
encouraging resistance to evil. The argument went that a legal positivist knows that the validity of law is
one thing, its merit another (pointing to the roots of legal positivism in the work of the law reformer,
Jeremy Bentham), while natural law theory, with its equation of legal status with moral status ("an unjust
law is no law at all") encourages a confusion among the populace between whether a rule is moral just
because it happens to be treated as valid. As it happens, upon closer inspection, there are probably no
strong arguments, either logical or psychological, for favoring legal positivism or natural law theory (or
any other alternative) for the resistance to evil law. (Soper, 1987; Schauer, 1996) Similarly, though
one might find a political motivation behind the development of legal positivism (Dworkin, 2002, pp.
1677-78) ­ however, even here, the argument is much easier to make for Bentham than for Austin ­ it
remains more misleading than helpful to evaluate legal positivism in terms of its political motivations (or
effects) rather than its status as a theory about the nature of law.
Even to this day, one can find some quite able commentators mis-reading certain legal positivist
theorists as abdicating the moral criticism of legal rules and legal systems. Jes Bjarup (7 NATURAL
LAW THEORY - CONTINENTAL PERSPECTIVES) even locates an obscure text (Austin, 2002,
vol. 1, pp. 275-76 n.s) where Austin appears to endorse Hobbes' view that "no law can be unjust."
However, in the course of that text, Austin makes clear (whatever might be the proper interpretation of
8
Hobbes) that he means "justice according to law" as a relative standard of evaluation, and that legal
rules and legal systems remain always subject to "conformity or nonconformity to the ultimate measure
or test: namely, the law of God." (Austin, 2002, vol. 1, p. 276 n.s)
Recently, some commentators have lamented that legal positivism is irrelevant to important
debates within law or legal philosophy. (e.g., Wright, 1996; Dyzenhaus, 2000; cf. Dworkin, 2002, pp.
1678-79) The complaint is that legal positivism does not entail any particular answer to the important
questions of law and practical reasoning: questions relating to constitutional interpretation, the proper
response to evil laws, the objectivity of morality, and the role of judges within society. This complaint is
not so much wrong as a misunderstanding. One should no more expect theories about the nature of
law to guide behavior or answer difficult ethical questions than one should expect day-to-day guidance
in life from theories of metaphysics (and, many would add, an inability of general philosophical theories
to answer mundane ethical questions is no reason to dismiss such inquiries as worthless).
While it is true that one prominent legal theorist, Ronald Dworkin, has argued that there should
be no sharp line between a theory of the nature of law and views about legal practice in a particular
legal system, and that one's jurisprudential theory will and should have implications for daily legal
practice (Dworkin, 1987, p. 14), that view is exceptional among theorists writing on the nature of law.
The burden seems naturally to be placed on those who would maintain that an investigation into the
(abstract) nature of a social practice has immediate implications for how individuals should live their
lives, or how practitioners within a practice should resolve difficult disputes within that practice. To
claim otherwise is to challenge, at least in this one instance, many entrenched views about keeping "is"
and "ought" ("description" and "prescription") separate, understanding that the second cannot be
9
derived from the first. (Dworkin has arguments for why these presumptions and distinctions should not
be given deference in jurisprudence, but this is not the place to consider in detail the merits and
shortcomings of those arguments.)
3. Alternative Legal Positivisms
In Anglo-American legal theory, legal positivism has become, in a sense, merely a series of
elaborations, emendations, and clarifications of H. L. A. Hart's work, in particular his work, The
Concept of Law (1994). Though, like the claim that modern Western philosophy is "merely" a series
of footnotes on the works of Plato and Aristotle, this need not be seen as a dismissal, just a recognition
of the importance of Hart's remaking of the legal positivist tradition.
If the dominant strand of English-language legal positivism clearly follows the work of Hart
(subdividing into "inclusive legal positivism" and "exclusive legal positivism," as will be discussed below,
in Section 5), there remain other strands in legal positivism that deserve mention. Historically, the first
strand is the command theory which both Austin (1994, 2002) and Bentham (1970, 1996) offered.
This approach reduced law to a basic picture of a sovereign (someone others are in a habit of obeying,
but who is not in the habit of obeying anyone else) issuing a command (an order backed by a threat).
Though the command theory (in particular, Austin's version of it) was subjected to a series of serious
criticisms by Hart and others (e.g., Hart, 1994, pp. 18-78), this approach continues to attract
adherents. (Moles, 1987; cf. Schauer, 1994b; Cotterrell, 1989, pp. 52-82) Its potential advantages
compared to the mainstream theories are: (1) it carries the power of a simple model of law (if, like
other simple models of human behavior, it sometimes suffers a stiff cost in distortion); (2) its focus on
10
sanctions, which seems, to some, to properly emphasize the importance of power and coercion to law;
and (3) because it does not purport to reflect the perspective of a sympathetic participant in the legal
system, it does not risk sliding towards a moral endorsement of the law.
The second strand is that of Hart and his followers. Hart's approach can be summarized under
its two large themes: (1) the focus on social facts and conventions, and (2) the use of a hermeneutic
approach, emphasizing the participant's perspective on legal practice. Both themes, and other
important aspects of Hart's work, are displayed in the way his theory grew from a critique of its most
important predecessor. Hart built his theory in a conscious contrast with Austin's command theory
(Hart, 1958; Hart, 1994), and justified the key points of his theory as improvements on points where
Austin's theory had fallen short. Where Austin's theory reduced all of law to commands (by the
Sovereign), Hart insisted on the variety of law: that legal systems contained both rules that were
directed at citizens ("primary rules") and rules that told officials how to identify, modify or apply the
primary rules ("secondary rules"); and legal systems contained both rules that imposed duties and rules
that conferred powers ­ conferring powers not only on officials, but also on citizens, as with the legal
powers conferred in the ability to create legally binding contracts and wills.
A key element of Hart's theory, "the rule of recognition," will be discussed in greater detail in
the next Section. For present purposes, it is sufficient to understand that this is a secondary rule that
specifies the criterial of legal validity within a legal system. For Hart, a legal system exists if there is a
rule of recognition accepted by the system's officials, and if the rules valid according to the system's
rule of recognition were generally obeyed. (Hart, 1994, p. 116)
11
As earlier mentioned, Austin's work can be seen as trying to find a "scientific" approach to the
study of law, and this scientific approach included trying to explain law in empirical terms: an
empirically observable tendency of some to obey the commands of others, and the ability of those
others to impose sanctions for disobedience. (e.g., Austin, 1995, pp. 21-26) Hart criticized Austin's
efforts to reduce law to empirical terms of tendencies and predictions (an effort that would be
duplicated in different ways in the work of the Scandinavian legal realists (e.g., Olivecrona,1971); and
Hart would criticize those theorists for those attempts (Hart, 1983, pp. 161-69)); for to show only that
part of law that is externally observable is to miss a basic part of legal practice: the acceptance of those
legal norms, by officials and citizens, as giving reasons for action. (Hart, 1994, pp. 13, 55-58, 82-84,
88-91, 99). The attitude of those who accept the law cannot be captured easily by a more empirical
or scientific approach, and the advantage of including that aspect of legal practice is what pushed Hart
towards a more "hermeneutic" approach. The possibility of popular acceptance (whether morally
justified or not) is also what distinguishes a legal system from the mere imposition by force by gangsters
or tyrants.
While Austin and Hart sometimes made casual references to their theories as "scientific" (e.g.,
Austin, 2002, vol. 2, pp. 1107-08) or "descriptive" (e.g., Hart, 1994, p. v; Hart, 1987, p. 37), it
would be left to some of the later theorists working within this tradition to work out the extent to which
one could or could not claim "descriptive" ­ or at least "morally neutral" ­ status for a legal theory. In
recent work, it has become almost a commonplace that legal theory cannot be "descriptive," if by that it
is meant that there is no evaluation of the data considered. Description without evaluation would
become, in the words of John Finnis, "a conjunction of lexicography with local history." (Finnis, 1980,
12
p. 4)
Some basis is required for selection, and this is a point realized even by Hart: that law should
be analyzed in its fullest and richest sense (not what is universal to all instances we might be inclined to
call "law"), and that the analysis of a legal system should take into account the perspective of someone
who accepts the legal system. (Hart, 1994, p. 98; Finnis, 1980, pp. 6-7). Finnis re-characterizes the
process (using ideas from Aristotle and Max Weber) as one of seeking the "ideal type" or "central
case" of law. (Finnis, 1980, pp. 9-11) Other theorists, emphasize other aspects of the process of
selection within theory-production: e.g., that one should prefer theories that are simple, comprehensive,
and coherent (Waluchow, 1994, pp. 19-29), and that a legal theory should strive to identify the
"central, prominent, important" features of law (Raz, 1985b, p. 735; cf. Raz, 1994, pp. 219-21;
Dickson, 2001). Legal positivists emphasize that such evaluation should not be confused with moral
evaluation (e.g., Coleman, 2001, pp. 175-197; Dickson, 2001); this argument, and the question of
whether a morally neutral form of legal positivism is possible, will be revisited below, in Section 8.
To return to the typology, the third strand of legal positivism is that of Hans Kelsen (Kelsen,
1967; Kelsen, 1992), who published much of his work in German, and remains better known and more
influential on continental Europe (and Latin America and South America) than he ever has been in
England and the United States. Kelsen's work has certain external similarities to Hart's theory, but it is
built from a distinctly different theoretical foundation: a neo-Kantian derivation, rather than (in Hart's
case) the combination of social facts, hermeneutic analysis, and ordinary language philosophy.
(Kelsen's ideas developed and changed over the course of six decades of writing; the claims made
about his work here apply to most of what he wrote, but will generally not apply to his last works
13
(Kelsen, 1991), when he mysteriously rejected much of the theory he had constructed during the prior
decades. (Hartney, 1991, pp. xxxvii - liii; Paulson & Paulson, 1998, p. vii; Paulson, 1992a))
Kelsen applied something like Kant's Transcendental Argument to law: his work can be best
understood as trying to determine what follows from the fact that people sometimes treat the actions
and words of other people (legal officials) as valid norms. (e.g., Paulson, 1992b) Kelsen's work can
be seen as drawing on the logic of normative thought. Every normative conclusion (e.g., "one should
not drive more than 55 miles per hour" or "one should not commit adultery") derives from a more
general or more basic normative premise. This more basic premise may be in terms of a general
proposition (e.g., "do not harm other human beings needlessly" or "do not use other human beings
merely as means to an end") or it may be in terms of authority ("do whatever God commands" or "act
according to the rules set down by a majority in Parliament"). Thus, the mere fact that someone asserts
or assumes the validity of an individual legal norm ("one cannot drive faster than 65 miles per hour") is
implicitly to affirm the validity of the foundational link of this particular normative chain ("one ought to
do whatever is authorized by the historically first constitution of this society").
Like Austin, but unlike Hart, Kelsen is a "reductionist": trying to understand all legal norms as
variations of one kind of statement. In Austin's case, all legal norms were to be understood in terms of
commands (of the sovereign); in Kelsen's case, all legal norms are to be understood in terms of an
authorization to an official to impose sanctions (if the prescribed standard is not met).
As Kelsen's work comes from a different tradition and a different form of analysis than Hart's,
Kelsen's work is not vulnerable to the same lines of criticism that are offered against Hart and his
successors. However, Kelsen is (unsurprisingly) subject to a different set of criticisms, many related to
14
the particular neo-Kantian approach he adopts. (Tur & Twining, 1986; Paulson & Paulson, 1998)
Not least, Kelsen's work, because largely abstracted from the social facts and practices of existing
legal systems, frequently struggles with the ontological nature of (legal) norms, along with the logical
relations among them. For Kelsen, the validity of legal norms derives from a basic norm, and that basic
norm is in turn "presupposed" by those seeing legal orders as normative. As a legal positivist, Kelsen
does not mean to ground the normative force of his basic norm or his legal norms on their moral
validity, but by making his theory "pure" even of sociological (or practice-based) elements, it is hard to
see what it means to say that norms "exist" or are "binding." (e.g., Bulygin, 1998) As regards the logic
of norms, as the content of norms derives, however indirectly, from the actions of officials, within
Kelsen's approach there is no basis for assuming that normal rules of logic and inference (e.g., rules of
non-contradiction) apply. (e.g., Kelsen, 1973, pp. 228-53; Conte, 1998; Hartney, 1991, pp. xlii - lii)
As mentioned, most discussions of legal positivism in contemporary English-language legal
scholarship skip over the Austinian and Kelsenian strands of legal positivism, and focus solely on the
legal positivism of Hart and his successors. Unless otherwise noted, this will be the focus of the
discussions in this chapter as well.
4. The Rule of Recognition and the Basic Norm
There are roughly analogous concepts central to both Hart's and Kelsen's work that have
attracted a great deal of discussion ­ Hart's rule of recognition and Kelsen's Basic norm (Grundnorm)
­ but the analogous general role of those concepts too frequently has gotten lost in fights over the
details. It is certainly important to note the distinctly different natures of Hart's and Kelsen's theories of
15
law (the difference between a theory grounded on social practices versus one grounded in a neo-
Kantian analysis of legal normativity), but there is also something to be learned from certain convergent
elements in the two theories.
As discussed above, H. L. A. Hart had argued that all (modern or mature) legal systems have
secondary rules ­ rules about rules, rules that allow for the identification, modification, and application
of "primary rules." As Hart saw it, these rules are necessary, for though some small or close-knit
communities might survive on a set of primary rules alone, that community's rule system would be static,
and there would likely be problems of uncertainty and inefficiency in the system, all problems that can
be solved by the presence of secondary rules. (Hart, 1994, pp. 92-95). Most significantly within
Hart's analysis, legal systems have a "rule of recognition," which comprises the basic criteria of legal
validity within the legal system in question: the rule of recognition "will specify some feature or features
possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of
the group to be supported by the social pressure it exerts." (Hart, 1994, p. 94) The basic role or
nature of the rule of recognition is established by the legal system's being a normative system: a
structured system of "ought" statements. Any individual norm stating what individuals can and cannot
do, according to law, must be grounded on a more basic or more general normative statement, and so
the chain of normative justification goes, until one reaches a norm for which there is no further
justification. Under Hart's approach, one looks at the behavior of legal officials (especially judges) to
determine what the ultimate criteria of validity are. (The Sovereign plays a similar role in Austin's
command theory. All the valid norms in the legal system, according to this approach, can be traced
back to a direct or indirect command by the Sovereign (indirect commands include the Sovereign's
16
authorization that judges can make new law in the Sovereign's name).)
Similarly for Kelsen: as discussed earlier, under his approach, one derives the Basic norm from
the citizens' treatment of certain acts as normative. However, Kelsen's Basic norm is derived from
treating a rules as legal norms, while Hart's rule of recognition is discovered in the actual practices of
legal officials. (As earlier noted, in his last works, Kelsen seemed to shift his views on many subjects
radically, and this included moving from a neo-Kantian theory of the Basic norm, to one based more on
Hans Vaihinger's "as if" theory. (Kelsen, 1991; Paulson, 1992a).)
Both the rule of recognition and the Basic norm rest on the idea of chains of normative validity:
a particular legal norm is only valid because it has been authorized by a more general or more basic
legal norm. This chain of validity must end somewhere, with a foundational norm that carries no further
justification, other than its "acceptance" (Hart, 1994, pp. 100-10) or its having been "presupposed."
(Kelsen, 1992, p. 59) It is again important to note the difference of approach and methodology here:
Hart's theory is meant as an analytical description of actual practices, while Kelsen sought a theory
purified even of sociological observation, and is best understood as a neo-Kantian transcendental
deduction from the fact that we treat certain rules as legal norms. (e.g., Paulson, 1992b)
Both the idea of a (single) rule of recognition and a (single) Basic norm derive from assumptions
that societies' legal regulations occur or are viewed as occurring in a systematic way ­ all the norms
fitting within a consistent, hierarchical structure of justification. If one does not think that legal systems
must be systematic in this way, then one could conclude that there could be more than one rule of
recognition (Raz, 1980, pp. 197-200) or more than one Basic norm. (Raz, 1979, pp. 122-45)
17
Hart's rule of recognition may play an additional general role in his theory which is not echoed
in Kelsen's Basic norm. For many theorists writing about Hart's theory, either in support or in
criticism, the rule of recognition has come to be equated with the ability to determine the validity of a
legal norm by recourse only to the process by which it was enacted or promulgated (the norm's
"source" or "pedigree") without consideration of its content. When Dworkin famously offered the
existence of legal principles as a purported rebuttal to Hart's theory of law, Dworkin argued that Hart's
rule of recognition could not account for the legal status of such principles, or at least that any rule of
recognition that could differentiate principles that were part of the legal system from those that were not
would no longer be able to serve the purposes behind Hart's rule of recognition. (Dworkin, 1977, pp.
39-45, 68-74) Hart, in his posthumously-published postscript, rejected the claim (Hart, 1994, pp.
250-54, 259-268), mostly by adopting the "inclusivist" interpretation of his own work. As will be
discussed in the next Section, this is a defense that may carry significant costs.
5. The Divisions Within Contemporary Legal Positivism
In contemporary Anglo-American legal positivism, which has focused on elaborating the
Hartian strand of legal positivism, much recent discussion has been on an internal debate between
"inclusive legal positivism" (also sometimes called "soft" or "incorporationist" legal positivism) and
"exclusive legal positivism" (also known as "hard" legal positivism). The debate between the two
camps involves a difference in interpreting or elaborating one central point of legal positivism: that there
is no necessary or "conceptual" connection between law and morality. Exclusive legal positivism
(whose advocates have included Joseph Raz (1994, pp. 194-221), Andrei Marmor (2002), and Scott
18
Shapiro (1998)) interprets or elaborates this assertion to mean that moral criteria can be neither
sufficient nor necessary conditions for the legal status of a norm. In different terms: exclusive legal
positivism states that "the existence and content of every law is fully determined by social sources."
(Raz, 1979, p. 46)
The most prominent argument for exclusive legal positivism is one offered by Joseph Raz based
on the relationship between law and authority. This argument depends, in part, on accepting Raz's
distinctive views on both the nature of law and the nature of authority. (cf. Waluchow, 2000, pp. 47-
52) First, as regards law, Raz argues that legal systems, by their nature, purport to be justified
(legitimate) practical authorities. (Raz, 1994, p. 199; Raz, 1996, p. 16) (He does not say that it is in
the nature of law to be justified practical authorities; that would be contrary to the basic tenet of legal
positivism that one can determine status as law without recourse to moral tests; it would also be in
tension with Raz's argument elsewhere that legal rules, even in generally just legal systems, do not
impose a prima facie moral obligation (Raz, 1994, pp. 325-38)).) Raz has argued for what is
sometimes called "the service conception of authority": that the "role and primary normal function [of
authorities] is to serve the governed." (Raz, 1990, p. 21) Authorities are to consider the same reasons
for action that would apply to the subject, and the subject ought to act as the authorities suggest if that
person "is likely better to comply with reasons that apply to him . . . if he accepts the directives of the
alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the
reasons which apply to him directly." (Raz, 1985a, p. 19 (italics removed)) This analysis of authority is
by no means universally accepted; it has been challenged both on descriptive and normative grounds.
(e.g., Lukes, 1990; Dworkin, 2002, pp. 1671-76)
19
Continually with Raz's approach to authority: those subject to an authority "can benefit by its
decisions only if they can establish their existence and content in ways which do not depend on raising
the very same issues which the authority is there to settle." (Raz, 1994, p. 219) In the context of law,
this means that with legal rules, which are meant to make authoritative decisions on matters on which
citizens would otherwise be subject to various moral (and prudential) reasons for action, we must be
able to ascertain their content without recourse to further moral evaluation. According to Raz, law
purports to play a particular role in citizens' practical reasoning ­ legal rules are to be "pre-emptive
reasons" or "exclusionary" reasons for action. (Raz, 1994, pp. 199-204; cf. Raz, 1990, pp. 35-48,
73-84, 178-99) Following this analysis, inclusive legal positivism must fail, it is argued, because it is
inconsistent with a core aspect of law, the legal system's purporting to be a justified practical authority.
Among the responses to Raz's attack on inclusive legal positivism have been the following: (1)
that legal rules and legal systems may be authoritative even when the content of the rules are sometimes
determined in part by moral reasons (e.g., Waluchow, 1994, pp. 129-40; Waluchow, 2000, pp. 47-
71); and (2) Raz's argument does not work where the moral criteria for validity (usually part of a
constitutional standard) are different from the moral reasons that would normally apply to citizens (e.g.,
the reasons for not murdering are different than the equality or "no cruel punishment" reasons that may
be the basis of invalidating a certain murder statute). (e.g., Coleman, 2001, pp. 125-27)
Another argument that has been offered for exclusive legal positivism derives from a claim
about the nature of rules. Scott Shapiro (1998) has emphasized that it is in the nature of rules, including
legal rules, that they make a difference in our practical reasoning, and that inclusive rules of recognition
would fail to make a difference in this way, as they would merely point us towards moral evaluations
20
already applicable to our choices. This claim has evoked a number of responses (e.g., Coleman, 2001,
pp. 134-48; Waluchow, 2000; Kramer, 2000; Himma, 2000), and the debate is still evolving. One
response is that it is sufficient that the legal system as a whole make a difference in our practical
reasoning, and this will continue to be the case if the moral criteria of an inclusive rule of recognition
were the sufficient conditions for some of the valid norms of the legal system, but not for all of them.
(e.g., Waluchow, 2000, pp. 76-81)
Inclusive legal positivism (whose advocates have included Jules Coleman (1982, 1998, 2001),
Wil Waluchow (1994), Philip Soper (1977), David Lyons (1977), and H. L. A. Hart (1994, pp. 250-
54)) interprets the separation of law and morality differently, arguing that while there is no necessary
moral content to a legal rule (or a legal system), a particular legal system may, by conventional rule,
make moral criteria necessary or sufficient for validity in that system. (e.g., Waluchow, 1994;
Coleman 1982) In the posthumously published "Postscript" to The Concept of Law, Hart indicated
that he saw inclusive legal positivism as better reflecting his own views and intentions. (Hart, 1994, pp.
247-54)
The strongest argument for inclusive legal positivism seems to be its fit with the way both legal
officials and legal texts talk about the law (though at least one advocate of the inclusive approach has
disclaimed such reliance on "fit" (Coleman, 2001, p. 109)). Morality seems to be a sufficient grounds
for the legal status of a norm in many common law cases (and decisions in which legal principles play a
large role (Dworkin, 1977, pp. 14-45)), where a legal norm is justified only or primarily on the basis
that morality requires it. (Of course, exclusive legal positivists have no objection to judges declaring
new law based on moral considerations; it is the argument that something is currently valid law
21
because of its moral merit that would run counter to exclusive legal positivism.) The more familiar
example for inclusive legal positivism is not about sufficient grounds for legal validity, but necessary
grounds: when constitution-based judicial review of legislation (e.g., in the United States and Canada)
requires or authorizes the invalidation of legislation that runs afoul of moral standards codified in the
constitution (e.g., regarding equality, due process, or humane punishment), this appears to make moral
merit a necessary, but not sufficient, basis for legal validity.
Additionally, the inclusive view allows theorists to accept many of Dworkin's criticisms of legal
positivism without abandoning what these same theorists consider the core tenets of legal positivism (its
grounding in social facts and conventions). Inclusive legal positivism accepts that moral terms can be
part of the necessary or sufficient criteria for legal validity in a legal system, but insist that the use of
moral criteria is contingent ­ and derived from the choices or actions of particular legal officials ­
rather than part of the nature of law (and thus present in all legal systems).
Various legal positivist theorists have offered a series of modifications and clarifications to try to
secure their views against the criticisms of Dworkin and of other legal positivists. For example, in
response to Dworkin's argument that judges do not have discretion, but instead are obligated to apply
legal principles (which are determined in part by their moral content, and thus could not be picked out
by a Hartian rule of recognition), Joseph Raz has argued that not every norm judges are obligated to
apply in deciding legal disputes is thereby "law." (Raz, 1983, pp. 83-85) Raz elsewhere (Raz, 1994, p.
317) offers the example of a court being directed to resolve a dispute by reference to the laws of
another country or the internal rules of an association; but whether such an analysis can fairly be applied
also to (e.g.) the moral standards incorporated in constitutional requirements may raise a more difficult
22
question. Another example: to Dworkin's argument that there is no Hartian rule of recognition in
modern constitutional democracies that could adequately serve the purported function of such rules ­
helping citizens to identify what is and is not valid law ­ Jules Coleman and Brian Leiter have argued
that the rule of recognition should be seen as having a validation function even if it does not have, within
some legal systems, an identification function. (Coleman & Leiter, 1996, p. 252) And numerous other
epicycles have been added to the basic legal positivist view to try to respond to critics within and
without. The problem is that the defenders of legal positivism may have become too clever for their
own good. With all the intricate modifications, clarifications, and addenda, the positivists may have
won the battle but lost the war. The theory may be able to beat off all attacks, but the fortified product
is one that sometimes seems to be neither recognizable nor powerful. (cf. Dworkin, 2002, pp. 1656-
65; Bix, 1999c)
6. Debates and Distinctive Views
As already noted, a useful approach to understanding a theory or a school of thought is to
consider its origins, seeing that to which it was reacting or responding. For Bentham and Austin, the
key provocation for early legal positivism was the sloppy natural law thinking of William Blackstone: in
Blackstone's claim ("no human laws are of any validity, if contrary to [the law of nature" (Blackstone,
1979, vol. 1, p. 41)), some discerned an implication that whatever was law (whatever rules the
common law judges had developed over time) was right and reasonable. In response, Bentham in
particular saw the need to distinguish clearly between the statement of what the law was, and the
evaluation of its merits. Bentham as reformer could then present a clear case for changes in the law.
23
(Bentham was thus also the strong advocate of codification and a strong opponent of the common law
and judicial legislation; as for legal reform, Bentham was also one of the founders of Utilitarianism, so he
had a moral system ready to guide the lawmakers in their reforms. (Bentham, 1996))
The path of legal positivism in the decades after Austin and Bentham broadly followed this initial
track: legal positivism as a contrast to natural law theory. However, the boundary lines and conflict
lines between that great tradition and legal positivism tend to become elusive upon closer inspection.
(Bix, 2000) It is hard to locate natural law theorists who actually disagree with the legal positivist
position, when the position is carefully stated. (cf. Finnis, 1994) One can find some sloppy language by
some peripheral figures which might be intended to equate legality and moral validity in a naive way (or
which at least invites that mis-reading) ­ John Austin (1994, pp. 157-59) pounces on just such a
remark by Blackstone in his Commentaries (quoted earlier). However, such examples are rare, and
fighting such occasional sloppiness is hardly enough to justify a whole school of jurisprudence. Most
natural law theorists are as anxious as most legal positivists to separate questions of validity within a
legal system and questions of moral value. Natural law theorists may argue that immoral laws are not
"laws in their fullest sense" (in that they do not create prima facie moral obligations), but that is quite
different from saying that they are "not `law' at all." (Kretzmann, 1988) (Nor need a legal positivist
disagree with that conclusion ­ at least in the sense that no disagreement seems required by the "tenets"
of legal positivism. (MacCormick, 1992))
There likely still are points of disagreement between legal positivism and natural law theory, but
they tend to come on relatively peripheral or marginal points. For example, modern legal theorists tend
to agree that a theory of law should take into account the perspective of a participant in the legal
24
process. (Hart, 1994, pp. 89-91) The idea is that law, like other social practices, is a purposive
activity, and an account of the nature of law that can take into account the views of participants is
thereby a better theory than one that does not do so. While natural law theorists have come to agree
with that view (e.g., Finnis, 1980, pp. 3-6), natural law theorists and legal positivists disagree on
whether an ability to distinguish morally legitimate law and law which falls short of that mark should be
built into that participant's perspective.
Both advocates and critics of legal positivism sometimes discuss the way in which legal
positivism succeeds or fails in "explaining the normativity of law." There is a deep ambiguity to that
phrase, which hides important questions about the nature of the claims legal positivist do and should be
making about law. One view, following Kelsen and a possible interpretation of Hart, is that legal
positivism is best understood as accepting the "fact" of normativity, that is, as starting from the
assumption that some large percentage of officials and citizens within a legal community accept the law
as establishing reasons for action (people viewing the legal norms as offering reasons for action means
more than being "persuaded" to act by the coercive force the system may use to enforce its standards;
in that case, it would be the sanctions, and not the legal norms themselves, that would be the reasons
for action). Hart famously criticized Austin's command theory for being unable to distinguish a legal
system from a gunman's threats, writ large. (Hart, 1994, pp. 20-25). Hart's line of argument, in the
context of a critique of Austin's command theory, can be seen merely as describing better and worse
descriptive theories: that a good descriptive theory will be one that can take into account the
differences between a gangster's imposition and a system that is (rightly or wrongly) accepted as
legitimate by some or most of its officials and citizens. Austin's theory, with its focus on the tendencies
25
of sanction and obedience, cannot discern the difference; Hart's theory, incorporating the internal point
of view, allows for this distinction. Thus, legal positivists observe the fact of normativity, and account
for it only in the sense of constructing a legal theory that can take that fact into account. Under this
view, legal positivists do not "explain normativity" in the sense of showing how such views can be
justified or legitimate, for that sort of "explanation of normativity" is just the type of moral or evaluative
judgment that legal positivism leaves to other types of analysis ­ e.g., political theory or moral theory.
Some commentators, perhaps unwisely, have tried to read more into Hart's critique of Austin
(and other similar comments), and have thought that it was legal positivism's task to "explain
normativity," in the evaluative sense of explaining in what sense the legal system could legitimately give
its officials and citizens additional reasons for action. Such explanations, when attempted, have tried
various paths, including arguments about legal rules and standards as coordinating conventions (e.g.,
Coleman, 1998) or as (in Michael Bratman's terminology (Bratman, 1992)), a "shared cooperative
activity." (Coleman, 2002, pp. 74-102; cf. Shapiro, 2002; Bratman, 2002) One suspects that these
sorts of explanations may be doomed to failure ­ for whenever they venture from the sociological
project of observing normative behavior to the task of justifying such behavior, they risk the error
David Hume pointed out long ago, of improperly trying to derive an "ought" from an "is." (cf. Finnis,
2000) There may be interesting work to be done in trying to ground moral obligations in the
coordination of behavior, but intertwining these arguments with the core views of legal positivism may
be more likely to invite confusion than insight.
26
7. Critiques of Legal Positivism
Every leading approach to law has its strong points and its weak points, aspects of legal
practice it accounts for very well and other aspects less well. The parts of legal practice that legal
positivism (or at least "exclusive" forms of legal positivism, see supra, Section 5), seems to account for
or explain less well, and that sometimes motivate scholars towards alternative theories, include the
following:
(1) Common law reasoning (e.g., Perry, 1987; Postema, 1996, pp. 95-96). While there are a
variety of theories of what is or should be going on in traditional forms of common law reasoning, one
could reasonably argue that this form of reasoning gives instances of a norm being valid law because of
its moral content rather than being based on a social source.
(2) Purposive interpretation ­ the way that statutes and constitutional provisions are interpreted
in line with their purposes (or with the broader purposes of particular areas of law) has seemed to some
to be evidence that the distinction between "law as it is" and "law as it ought to be" is not as sharp as
legal positivists make out. (Fuller, 1958, pp. 661-669; cf. Hart, 1958, pp. 606-15).
(3) Customary law ­ legal systems which recognize "customary law" often characterize the
judges applying such laws as merely recognizing already existing legal standards. Again, the question is
whether to treat such "recognitions" at face value, or to treat them as judicial legislation. Austin (1994,
pp. 34-36) wrestles awkwardly with fitting customary laws into a system based on commands
(concluding that customary norms, because not commands, cannot be legal rules, but that they can
become legal rules when adopted by judges ­ which he then characterized as indirect commands of the
sovereign).
27
(4) "Landmark cases" where courts change radically what most judges and commentators had
assumed the law to require, but the courts insist that they are merely discovering or clarifying the
existing law. (e.g., Dworkin, 1977, pp. 22-31) The English tort law case, Donoghue v. Stevenson
([1932] A.C. 562), and a comparable American case, MacPherson v. Buick Motor Co. (217 N.Y.
382, 111 N.E. 1050 (1916)), are paradigmatic examples. While a legal positivist (at least of the
"exclusive" variety) could simply refer to these cases as instances of judicial legislation, the judges and
commentators frequently resist such characterizations, preferring the view that the law "works itself
pure" (Omychund v. Barker (1744) 26 E.R. 15 at 23), thus blurring the legal positivist's line between
"what law is" and "what law ought to be."
As the above four categories exemplify, to varying degrees, in general legal positivism does
better explaining those aspects of law that derive from "will," the choice of some identifiable law-maker,
and less well in explaining those aspects of law that seem to derive from "reason," the derivation of legal
standards directly or indirectly from moral standards. Alternative approaches, like Ronald Dworkin's
interpretive approach and some versions of natural law theory, tend to have the opposite problem: they
are better with the "reason" side of law, and weakest in dealing with the "will" (or "authority") aspects
of law. (cf. Bix, 1999b, pp. 121-26; Bix, 2002, p. 68) (See 6 NATURAL LAW THEORY; 15
ADJUDICATION) This contrast may be most sharply visible in Hans Kelsen's work, where a judge's
application of a general norm to a particular case (e.g., "no one can park on this street," therefore
"James was not allowed to park on this street") was considered the creation of a new norm. That is,
the specific norm was law because, and only because, it was so willed by the judge; prior to that act of
judicial law-making the specific norm was not law, even though it might be connected to a general legal
28
norm by the simplest of logical operations. (Kelsen, 1992, pp. 67-68; cf. Finnis, 2000, pp. 1600-01).
Fuller summarized the will/reason distinction and its significance for understanding law:
"When we deal with law, not in terms of definitions and authoritative sources,
but in terms of problems and functions, we inevitably see that it is compounded of reason
and fiat, of order discovered and order imposed, and that to attempt to eliminate either
of these aspects of the law is to denature and falsify it." (Fuller, 1946, p. 382)
As has been discussed elsewhere in this Chapter, legal positivism can account for the "order
discovered" aspect of law, on the basis that such "discoveries" do not become significant for a legal
system until announced by the duly appointed officials (though the debate remains whether the
standards should be thought of or treated as having been valid law prior to this promulgation). Legal
positivism's focus on the authoritative sources and officials also has the virtue of accounting for the
inevitable disagreement and fallibility in ascertaining what the implicit or eternal order is. On the other
hand, Fuller's point, echoed by other critics of legal positivism, is that refusing to give equal emphasis to
the (implicit or eternal) order which lawmakers aspire to ascertain and apply is to miss something basic
in the nature of law.
To resume the list of objections:
(5) Significant disagreement ­ as Dworkin has pointed out (e.g., Dworkin, 1986, pp. 120-39;
Dworkin 2002), the appearance of pervasive disagreement among legal officials and legal scholars
about even basic aspects of practice within many legal systems (including those in the United States and
Britain) raises serious questions for a legal theory that seems to be grounded on conventional
agreement.
29
(6) Legal mistake ­ the problem of "mistake" can cause problems for legal positivism, but
probably no more than for almost any alternative theory. Whatever criteria one chooses for legal
validity, there will be occasions when judges or other legal officials seem to act contrary to those
criteria, most frequently from a sincere but mistaken application of the criteria, but sometimes from
corruption or other wicked motives. The reality of such deviations can tempt theorists to say that the
only criterion of validity is the decision of the ultimate decision-maker (e.g., the most recent decision on
the issue by the United States Supreme Court or the House of Lords). However, this recourse has
even greater difficulties, difficulties which Hart satirized through his description of "scorer's discretion"
(an intentional mis-interpretation of games which have rules for when a goal has been scored but where
referees have the final word on whether a goal has in fact been scored). As Hart pointed out, it badly
mischaracterizes what is going on to declare the relevant norm to be that a goal is scored if and only if
the scoring judge declares it to have occurred (Hart, 1994, pp. 141-47)). This ("scorer's discretion"
or "what the judges say, is law") view of practices with final arbiters who purport to apply norms
misses the extent to which the ultimate decision-maker considers himself or herself bound by standards,
and the extent to which other actors, or the same decision-maker at a later date, may criticize the initial
decision by reference to those standards.
There is no reason to believe that these items, individually or collectively, form a conclusive
case against legal positivism. They are rather, as earlier noted, weak points, and competing approaches
to the nature of law will have their own, different, weak points. (Roger Shiner (1992) has shown how
the weak points in legal positivism could lead one towards a natural law approach, but that the weak
points in natural law theories would lead one back to legal positivism.)
30
8. Two Critics Ronald Dworkin and John Finnis
The most incisive criticisms of legal positivism in recent years have come, first, from Ronald
Dworkin (1977, 1985, 1986, 2002) (and some other prominent theorists, e.g., Stephen Perry (1995,
1996, 1998, 2002), developing a comparable line of criticism), and, second, from the natural law
theorist John Finnis. This Section will offer a brief overview of these critiques.
A. Ronald Dworkin
Dworkin's challenge to legal positivism has had three general themes: (1) a challenge to the
picture legal positivism gave (or seemed to give) that legal systems were merely systems of rules; (2) an
argument that legal positivism was wrong in believing that questions of legal validity are, by their nature,
separate from considerations of the content or the merit of purported legal norms; and (3) a challenge
to the general belief that law and legal validity are conceptually separate from questions of morality and
moral worth. (Dworkin has also argued that legal positivism is best understood as a "semantic" theory
(Dworkin, 1985, pp. 31-44) ­ attempting only to determine the meaning of the word "law" ­ but this
has been rejected by all contemporary legal positivists as both uncharitable and unwarranted. Legal
positivists have never been mere lexicographers, mere dictionary writers, they have tried, if not always
with success, to say something about a certain social institution or a certain concept. (e.g., Hart, 1994,
pp. 239-248))
In his earlier works, Dworkin argued that Hart's version of legal positivism must be rejected
because it assumes a view of a legal system that consists entirely of legal rules, when legal systems
contain "principles" as well. Legal principles differ from legal rules, in Dworkin's critique, in that
31
principles are moral propositions, grounded in the past actions of legal officials, that are not conclusive
for the cases to which they apply: instead, they add varying levels of weight to the argument for the
outcome one way or the other. There can thus be, and frequently will be, legal principles on both sides
of a difficult case. (Dworkin, 1977, pp. 22-28) Because the questions of whether legal principles apply
in a particular case, and what weight they have in that case, are factors relating to the content of the
principle, and not merely based on the principle's "source" or "pedigree," Dworkin argued that a
Hartian rule of recognition could not identify valid legal principles and still play the role Hart needed the
rule of recognition to play within a legal positivist theory of law. (Dworkin, 1977, pp. 28-31, 39-48,
64-68)
While there was much contemporary debate of Dworkin's rules/principles critique of legal
positivism (e.g., Raz, 1983), that discussion has largely fallen away, in large part because Dworkin's
later work offered a view of the law that did not turn on the distinction between rules and principles, but
rather on a more nuanced interpretive theory of social practices. (Dworkin, 1986) However, variations
of Dworkin's initial critique, questioning whether a legal positivist rule or recognition can account for all
the valid norms within the legal system ("rules," "principles," or otherwise) survives, though it has mostly
been transformed into the detailed infighting between inclusive and exclusive legal positivism, which has
already been discussed (supra, Section 5).
A more productive line of critique has been offered by Stephen Perry, whose version of
Dworkin's non-neutrality critique argues that Hart was wrong to believe that a "descriptive" ­ morally
neutral, non-evaluative ­ theory of law was possible. (Perry, 1995, 1996, 1998, 2002) Perry's
argument, in rough summary, is that in the construction of a theory of law, choices must be made;
32
theories cannot be just an accumulation of facts. These choices have often been justified by some
argument regarding the purpose of law, but different theorists have put forward different purposes (e.g.,
Dworkin often refers to the justification of state coercion, while a number of the legal positivists have
preferred to see law's purpose as guiding citizen behavior). How can one choose between one
purpose and another, a foundational question within the theory, except on the basis that one is morally
superior to the other? To put the question differently, what morally-neutral principle, what simple
principle of theory-construction, would be sufficient to adjudicate between competing theories about
the primary purpose of law?
There are a number of thoughtful responses as to how neutral principles of theory construction
or conceptual analysis could be sufficient (e.g., Coleman, 2001, pp. 197-207; Waluchow, 1994, pp.
19-29; Dickson, 2001). Whether these responses are adequate to rebut the Dworkin/Perry challenge
regarding the impossibility of a neutral theory remains highly contested and unsettled.
Dworkin has raised other challenges to legal positivism: In his later work (e.g., Law's Empire
(1986)), as mentioned earlier, Dworkin argued that legal positivism (at least in the Hartian tradition)
could not adequately account for pervasive disagreement within legal practice. He argued that the
model of law based on a pedigree-based (content neutral, no moral evaluation) rule of recognition
could at best be understood as a kind of "conventionalism" that placed great value on stability and
predictability within legal practice, and that Hart's theory as a whole was most charitably understood as
explicating the (often unstated) shared criteria officials and citizens have regarding the meaning of legal
practices, concepts, and propositions. Dworkin argued that Hart's model of law falls short, both
descriptively and morally, compared to his own interpretive theory of law. (Dworkin, 1986, pp. 33-46,
33
114-50). In turn, Hart and others have rejected this interpretation of legal positivism, and Dworkin's
critique of legal positivism more generally. (e.g., Hart, 1994, pp. 238-76; Coleman, 1998) It is the
response to this line of criticism by Dworkin that has prompted the development of "inclusive legal
positivism" and driven much of the debate between it and "exclusive legal positivism" (see supra,
Section 5).
B. John Finnis
A different line of criticism has recently emerged from the traditional opponent of legal
positivism ­ natural law theory. John Finnis (Finnis, 2000; Finnis, 2002), the most prominent legal
theorist working within the natural law tradition, argues that law must be understood both in terms of (1)
a description of the past acts of legal officials and (2) reasons for action (for officials and citizens alike).
However, a full and proper analysis of the second aspect of law, its giving reasons for action, cannot be
accomplished without a focus on what constitutes good (moral) reasons for action. Only a theory (like
a natural law theory) that takes into account moral argumentation can appropriately come to terms with
the way that actions by officials can affect the moral obligations of citizens (and why such actions
sometimes fail to change our moral rights and duties). And once the discussion of law becomes
separated from questions about the law's (moral) authority, it can do no more than "report[] attitudes
and convergent behavior" (Finnis, 2000, p. 1611). (See 6 NATURAL LAW THEORY)
One possible response was touched upon earlier ­ that legal positivists should not worry about
not being able to account for the moral force (if any) of law, because that was never the purpose of
this approach. Finnis' challenge would remain: questioning whether there is anything useful that can be
34
stated about the nature of law without purporting to evaluate legal rules and legal systems normatively
(and without being reduced to a mere sociology of law-related behaviors). This question is touched
upon in the next Section in a more general way, and can be summarized, briefly, as follows: should a
theory about the nature of law should focus (in a morally neutral way) on law's status as a kind of
social institution, as legal positivism arguably does; or should it instead focus (as natural law theory
arguably does) on law's status as a reason for action that can affect people's moral obligations (and is
there any theoretical approach to the nature of law that can fully capture both aspects of law's nature)?
9. Methodological Questions and the Way Forward
This brief overview of the debates involving legal positivism connects to a question about the
purpose of legal theory (and of philosophy). What do we expect legal theory to do? How can we
distinguish good legal theories from bad ones? We cannot test theories about the nature of law the way
we test scientific theories: by setting up controlled experiments to see if the events predicted by the
theory come about or not. Nor can we even apply the test of historical theories: judging theories by
the extent to which they match with the facts in the past. Neither conventional approach to verification
or falsification works with theories about the nature of law, because such theories do not purport to be
(merely) empirical theories, but rather conceptual claims, claims about what is "essential" to the concept
(or "our concept" of) "law."
However, if legal positivism is not about some simply-factual claim about the systems we call
"law," the question returns more sharply: what are the criteria of success? how do we tell a good or
successful theory of law from a less good or less successful theory?
35
A good theory explains. A good theory would be one that tells us something significant ­ that
says something interesting about the category of phenomenon we call "law." Even if it is not a claim
that can be verified or falsified, one can still feel that a theory either does or does not give us an insight
onto the practice or phenomenon that we did not have before. A theory that offers to tell us something
about the "nature of law" needs, of course, to reflect, to a substantial extent, the way citizens and
lawyers perceive and practice law ­ it must "fit" our legal practice, though the fit need not be perfect,
though significant deviations from the participants' understanding of a practice must be justified by some
insight offered. This relates to the second point: a theory should offer more than general descriptive fit
­ it should also tell us something about the practice that even regular participants in the practice might
not have been able to articulate, but which they would recognize when confronted with the theory.
Legal positivism, if it is to continue to be a tenable and valuable theory of law, must seek out a
position that offers insight, and this must also be a position with which reasonable persons might
disagree (otherwise the theory reduces to an everyday truth, unworthy of discussion). This is the
advantage that exclusive legal positivism has over inclusive legal positivism: whatever its relative merits
in the debates with natural law theory and Dworkinian theory, exclusive legal positivism has the
advantage of a distinctive statement about the nature of law and its role in society. Exclusive legal
positivism emphasizes the differences between law as it is, and law as it ought to be (a distinction
Dworkin's theory fogs, when it does not erase it entirely), and it emphasizes the connection between
law and the role of authority in governance (in democratic regimes, that officials make choices in the
name of the people, which other officials must then enforce). This is not a conclusive argument for
exclusive legal positivism, but it is a significant factor in its favor (exclusive theorists still face the
36
challenge that they maintain a distinctive view of law at the cost of too large a gap between their
characterization of the practice and how practitioners understand their own legal systems).
If legal theories in general, and legal positivism in particular, are merely a contestable way of
characterizing the nature of law, if there is no clear "right" or "wrong," and no sense in which "fitting the
facts" is a strict criterion of success, there is a temptation to ask why anyone should care about such
things. If theorizing about the nature of law is not a search for "the truth," narrowly understood, like
pure physics, and it is not meant to respond to some particular view of social justice, what is the point?
The controversial claim and the interesting claim of legal positivism may be at its foundation:
that it is both possible and valuable to offer a descriptive or conceptual theory of law. The claim that
one can create a descriptive (or, at least, morally neutral) theory of law will be met by those (like
Ronald Dworkin) who claim that nothing interesting can be said at the level of law in general, and thus
that legal theory should be theories of particular legal systems. (Dworkin, 1987, p. 16) And, as
already discussed, the claim that there can be a descriptive (or morally neutral) theory of law will also
be met by those (e.g., Dworkin, 1986, pp. 31-113; Perry, 1988, 1995, 1996, 2002) who argue that
controversial moral choices are inevitable even in a purportedly descriptive theory. (Here, though,
there is a thin line between evaluative standards which are selective, but arguably not morally evaluative,
and standards that do seem morally evaluative or political.)
It is important for legal positivists ­ indeed, for all theorists about the nature of law ­ to spend
more time thinking of their project in the broader context of social theory, and the problem of the social
sciences. For example, the view that there can be a fully descriptive theory of law may be open to
attack on the grounds that social theory can never be neutral in that way. (e.g., Lucy, 1999) Legal
37
positivists are well-advised to look to the nature of comparable debates within social theory, when
making their arguments in defense of their approach to the nature of law.
While law can be seen as a subset of social institutions and practices on one hand, it is also, on
the other hand, a subset of reason-giving practices (along with religion, morality, and perhaps etiquette),
as mentioned in the previous Section, in discussing John Finnis's critique of legal positivism. For this
broader category of theorizing about reason-giving practices, there would be obvious tensions in any
effort to create a "descriptive" or "neutral" theory of an intrinsically evaluative practice. At the least,
there are evident arguments for preferring a perspective on reason-giving practices that would reflect on
their merits according to their ultimate purposes (cf. Finnis, 2000, 2002). It may well be that law's
double nature ­ as a social institution and as a reason-giving practice ­ makes it impossible to capture
the nature of law fully through any one approach, with a more "neutral" approach (like legal positivism)
required to understand its institutional side, and a more evaluative approach (like natural law theory)
required to understand its reason-giving side.
Finally, legal positivists who offer a conceptual theory of law will be met by those (like Brian
Leiter) who challenge the possibility, or at least the value, of conceptual analysis (Leiter 1998a, 1998b,
2002; cf. Harman, 1994). Once again, the question should not be seen as one peculiar to legal theory.
Brian Leiter has rightly reminded legal theorists that they are part of a larger world of philosophy, and
the abandonment of conceptual analysis elsewhere in philosophy (abandoning "armchair metaphysics"
for more empirically-grounded inquiries) should give legal theorists pause. However, while conceptual
analysis may have been largely discarded in some areas of philosophy, like epistemology, the direct
comparison is not whether conceptual theory is still considered useful for a theory of knowledge, but
38
rather whether conceptual theory is still considered useful for social theory ­ for that is arguably the
closest topic in general philosophy for theorists working on the nature of law. Some legal theorists have
already offered reasons for believing that the attack on conceptual analysis in social theory generally,
and jurisprudence specifically, can be rebutted. (e.g., Coleman, 2001, 210-17) However, even if
conceptual analysis is considered appropriate for jurisprudence, there is still work to be done to
elaborate what is meant by speaking of the "nature" or "essence" of law; to explain whether or in what
way there are "necessary truths" about law; and to analyze whether there has only been one concept of
law throughout history or, to the contrary, different societies have had different concepts (many of these
issues are discussed by Joseph Raz (1 LEGAL THEORY)).
10. Conclusion
Many people approach legal positivism with a strong presumption in its favor. After all, how
could one reasonably be against having a descriptive (or at least morally neutral) study of a social
institution and practice, separating what is from what should be, and allowing other disciplines to
discuss normative or historical or sociological aspects of the same social institution and practice?
However, as this Chapter has indicated, under further critical examination, there are questions that can
and should be asked about the possibility and value of this type of inquiry. First, approaches to the
nature of law should be understood within the context of larger debates regarding theories of other
social practices and institutions, and theories of other reason-giving practices. Broader inquiries will
include, on the one hand, the question of the possibility of a morally neutral theory, and, on the other
hand, the viability of "conceptual" theory.
*
I am grateful to the comments and suggestions of William A. Edmundson, Daniel A.
Farber, Miranda Oshige McGowan, Brian Z. Tamanaha, and those who heard earlier versions of this
Chapter when they were presented at the University of Minnesota and the University of Stockholm.
39
A more precise set of questions might be derived from the above general considerations: What
does it mean to talk about the nature of law?, and What does it mean to succeed or fail in having a
theory of law? To answer these questions, in light of the general concerns outlined, is the challenge that
legal positivism must meet if it is going to warrant our continuing attention. If this challenge is not met,
legal positivism will become, one fears, just another interesting topic in the history of ideas, rather than a
vibrant debate in our current reflections on what it means to have and maintain a legal system.*
References
Austin, J. (1994). The Province of jurisprudence determined (W. E. Rumble, ed.). Cambridge:
Cambridge University Press (Original work published 1832).
--. (2002). Lectures on jurisprudence or the philosophy of positive law (2 vols.) (fourth
ed., rev. and ed. by R. Campbell). Bristol: Thoemmes Press. (Original work
published 1879).
Bentham, J. (1970) Of Laws in general (H. L. A. Hart, ed.). London: University of London,
The Athlone Press.
--. (1996). An Introduction to the principles of morals and legislation (J. H. Burns &
H. L. A. Hart, eds.). Oxford: Clarendon Press (Original work published 1789).
Berlin, I. (1997) The Proper study of mankind (H. Hardy & R. Hasuheer, (Eds.)).
London: Random House.
Bix, B. (1999a). H. L. A. Hart and the hermeneutic turn in legal theory. 52 S.M.U. Law Review,
52, 167-199.
--. (1999b). Jurisprudence, theory and context (2nd
ed.). London: Sweet & Maxwell.
--. (1999c). Patrolling the boundaries: Inclusive legal positivism and the nature of
jurisprudential debate. Canadian Journal of Law and Jurisprudence, 12, 17-33.
40
--. (1999d). Positively positivism. Virginia Law Review. 85, 889-923.
--. (2000). On the dividing line between natural law theory and legal positivism. Notre Dame
Law Review, 75, 1613-1624.
--. (2002). Natural law theory: the modern tradition. In J. L. Coleman & S. Shapiro (Eds.) &
K. E. Himma (Assoc. Ed.). Oxford handbook of jurisprudence and philosophy of law
(pp. 61-103). Oxford: Oxford University Press.
Blackston, W. (1979). Commentaries on the laws of England (4 vols.). Chicago: University of
Chicago Press. (Original work published 1765-1769).
Bratman, M. E. (1992). Shared cooperative activity. Philosophical Review, 101, 327-341.
--. (2002). Shapiro on legal positivism and jointly intentional activity. Legal Theory, 8,
511-517.
Bulygin, E. (1998). An Antinomy in Kelsen's pure theory of law. In S. L. Paulson & B. L.
Paulson (Eds.). Normativity and norms: critical perspectives on Kelsenian themes
(pp. 297-315). Oxford: Clarendon Press.
Coleman, J. L. (1982). Negative and positive positivism. Journal of Legal Studies, 11, 139-164.
--. (1998). Incorporationism, conventionality, and the practical difference thesis. Legal
Theory, 4, 381-426.
--. (2001). The practice of principle: In defence of a pragmatist approach to legal
theory. Oxford: Oxford University Press.
Coleman, J. L. & Leiter, B. (1996). Legal positivism. In D. Patterson (Ed.). A Companion to
the Philosophy of Law and Legal Theory (pp. 241-60). Oxford: Blackwell.
Conte, A. G. (1998). Hans Kelsen's deontics. In S. L. Paulson & B. L. Paulson (Eds.).
Normativity and norms: critical perspectives on Kelsenian themes (pp. 331-341).
Oxford: Clarendon Press.
Cotterrell, R. (1989). The Politics of jurisprudence. London: Butterworths.
Cover, R. (1975). Justice accused: antislavery and the judicial process. New Haven: Yale
University Press.
Dickson, J. (2001). Evaluation and legal theory. Oxford: Hart Publishing.
Dworkin, R. (1977). Taking rights seriously. Cambridge, Mass.: Harvard University Press.
--. (1985). A Matter of principle. Cambridge, Mass.: Harvard University Press.
--, (1986). Law's empire. Cambridge, Mass.: Harvard University Press.
41
--. (1987). Legal Theory and the Problem of Sense. In R. Gavison (Ed.). Issues in
Contemporary Legal Philosophy (pp. 9-20). Oxford: Clarendon Press, 1987.
--. (2002). Thirty years on. Harvard Law Review, 114, 1655-1687.
Dyzenhaus, D. (2000). Positivism's stagnant research programme. Oxford Journal of Legal
Studies, 20, 703-722
Finnis, J. (1980). Natural law and natural rights. Oxford: Clarendon Press.
--. (1994). The Truth in legal positivism. In R. P. George (Ed.). The Autonomy of law:
essays on legal positivism (pp. 195-214). Oxford: Clarendon Press.
--. (2000). On the incoherence of legal positivism. Notre Dame Law Review, 75, 1597-1611.
--. (2002). Natural law: the classical tradition. In J. L. Coleman & S. Shapiro (Eds.) & K. E.
Himma (Assoc. Ed.). Oxford handbook of jurisprudence and philosophy of law (pp.
1-60). Oxford: Oxford University Press.
Fuller, L. L. (1946). Reason and fiat in case law. Harvard Law Review, 59, 376-395.
--. (1958). Positivism and fidelity to law ­ a reply to Professor Hart. Harvard Law
Review, 71, 630-672.
George, R. P. (1999). In Defense of natural law. Oxford: Clarendon Press.
Harman, G. (1994). Doubts about conceptual analysis. In M. Michael & J. O'Leary-Hawthorne
(Eds.). Philosophy in mind: the place of philosophy in the study of mind (pp. 43-48).
Dordrecht: Kluwer Academic Publishers.
Hart, H. L. A. (1958). Positivism and the separation of law and morals. Harvard Law Review,
71, 593-629.
--. (1983). Essays in jurisprudence and philosophy. Oxford: Clarendon Press.
--. (1987). Comment [on Dworkin]. In R. Gavison (Ed.). Issues in contemporary legal
philosophy (pp. 35-42). Oxford: Clarendon Press.
--. (1994). The Concept of law (2nd
ed.). Oxford: Clarendon Press.
Hartney, M. (1991). Introduction. In H. Kelsen. General theory of norms (M. Hartney, ed.)
(pp. ix - liii). Oxford: Clarendon Press.
Himma, K. E. (2000). H. L. A. Hart and the practical difference thesis. Legal Theory, 6, 1-43.
Hobbes, T. (1996). Leviathan (R. Tuck (Ed.)). Cambridge: Cambridge University Press.
(Original work published 1651).
42
Holdsworth, W. S. (1903-1938) A History of English law (12 vols.). London: Methuen &
Co. Ltd.
Kelsen, H. (1967). Pure theory of law (M. Knight, trans.). Berkeley: University of California
Press.
--. (1973). Essasys in legal and moral philosophy (O. Weinberger, ed., P. Heath, trans.).
Dordrecht: D. Reidel Publishing Co.
--. (1991). General theory of norms (M. Hartney, ed. and trans.). Oxford: Clarendon Press.
--. (1992). Introduction to the problems of legal theory (B. L. Paulson & S. L. Paulson,
trans.). Oxford: Clarendon Press. (Original work published 1934).
Kramer, M. (2000). How moral principles can enter into the law. Legal Theory, 6, 83-108.
Leiter, B. (1998a). Naturalism and naturalized jurisprudence. In B. Bix (Ed.). Analyzing law:
new essays in legal theory (pp. 79-104). Oxford: Clarendon Press.
--. (1998b). Realism, hard positivism, and conceptual analysis. Legal Theory, 4, 533-547.
--. (2002). Naturalism in legal philosophy. In E. N. Zalta (Ed.). Stanford encyclopedia of
philosophy, http://plato.stanford.edu.
Lucy, W. (1999). Understanding and explaining adjudication. Oxford: Oxford University Press.
Lukes, S. (1990). Perspectives on authority. In J. Raz (Ed.). Authority (pp. 203-217). New
York: New York University Press.
Lyons, D. (1977). Principles, positivism, and legal theory. Yale Law Journal, 87, 415-435.
MacCormick, N. (1992). Natural law and the separation of law and morals. In R. P. George
(Ed.). Natural law theory: contemporary essays (pp. 105-33). Oxford: Clarendon Press.
Marmor, A. (2002). Exclusive legal positivism. In J. L. Coleman & S. Shapiro (Eds.) & K. E.
Himma (Assoc. Ed.). Oxford handbook of jurisprudence and philosophy of law (pp. 104-
24). Oxford: Oxford University Press.
Moles, R. N. (1987). Definition and rule in legal theory. Oxford: Basil Blackwell.
Olivecrona, K. (1971) Law as fact (2nd
ed.). London: Stevens & Sons.
Paulson, S. L. (1992a). Kelsen's legal theory: the final round. Oxford Journal of Legal Studies,
12, 265-274.
--. (1992b). The Neo-Kantian dimension of Kelsen's pure theory of law. Oxford Journal of
Legal Studies, 12, 311-332.
43
--. (1994). Lon L. Fuller, Gustav Radbruch, and the `positivist' theses. Law and Philosophy,
13, 259-284.
Paulson, S. L. & Paulson, B. L. (Eds.). (1988). Normativity and norms: critical perspectives on
Kelsenian themes. Oxford: Clarendon Press.
Perry, S. R. (1987). Judicial obligation, precedent, and the common law. Oxford Journal of
Legal Studies, 7, 215-257.
--. (1995). Interpretation and methodology in legal theory. In A. Marmor (Ed.). Law and
interpretation (pp. 97-135). Oxford: Clarendon Press.
--. (1996). The Varieties of legal positivism. Canadian Journal of Law and Jurisprudence,
9, 361-381.
--. (1998). Hart's methodological positivism. Legal Theory 4, 427-467.
--. (2002). Method and principle in legal theory. Yale Law Journal, 111, 1757-1813.
Raz, J. (1979). The Authority of law. Oxford: Clarendon Press.
--. (1980). The Concept of a legal system: an introduction to the theory of legal system
(2nd
ed.). Oxford: Clarendon Press.
--. (1983). Legal principles and the limits of law. In M. Cohen (Ed.). Ronald Dworkin and
contemporary jurisprudence (pp. 73-87). Totowa, New Jersey: Rowman & Allanheld.
--. (1985a). Authority and justification. Philosophy and Public Affairs, 14, 3-29.
--. (1985b). The Morality of obedience. Michigan Law Review, 83, 732-749.
--. (1990). Practical reason and norms. Princeton: Princeton University Press.
--. (1994). Ethics in the public domain. Oxford: Clarendon Press.
--. (1996). On the Nature of law. Archiv für Rechts- und Sozialphilosophie 82, 1-25.
--. (1998a). Postema on law's autonomy and public practical reasons: a critical comment.
Legal Theory, 4, 1-20.
--. (1998b). Two views of the nature of the theory of law: a partial comparison. Legal
Theory, 4, 249-282.
Schauer, F. (1994a). Fuller's internal point of view. Law and Philosophy, 13, 285-312.
--. (1994b). Critical notice. Canadian Journal of Philosophy, 24, 495-510.
--. (1996). Positivism as pariah. In R. P. George (Eds.). The Autonomy of law: essays on legal
positivism(pp. 31-55). Oxford: Clarendon Press.
Sebok, A. J. (1998). Legal positivism in American jurisprudence. Cambridge: Cambridge
University Press.
Shapiro, S. J., (1998). On Hart's way out. Legal Theory, 4, 469-507.
--. (2002). Laws, plans, and practical reason. Legal Theory, 8, 387-441.
44
Shiner, R. (1992). Norm and nature: the movements of legal thought. Oxford: Clarendon Press.
Soper, E. P. (1977). Legal theory and the obligation of a judge: The Hart/Dworkin dispute.
Michigan Law Review, 75, 473-519.
--. (1987). Choosing a legal theory on moral grounds. In J. Coleman & E. F. Paul (Eds.).
Philosophy and law (pp. 31-48). Oxford: Basil Blackwell.
Tur, R. & Twining, W. (Eds.). (1986). Essays on Kelsen. Oxford: Clarendon Press.
Twining, W. (1985). Karl Llewellyn and the realist movement. Norman, Oklahoma: University
of Oklahoma Press.
Waluchow, W. J. (1994). Inclusive legal positivism. Oxford: Clarendon Press.
--. (2000). Authority and the practical difference thesis: a defense of inclusive legal positivism.
Legal Theory, 6, 45-82.
Warren, C. (1908). History of the Harvard law school and of early legal conditions in
America. (3 vols.). New York: Lewis Publishing.
Wright, R. G. (1996). Does positivism matter? In R. P. George (Ed.) The Autonomy of law
(pp. 57-78). Oxford: Clarendon Press.
Suggested Further Reading
Bix, B. (1993). Law, language and legal determinacy. Oxford: Clarendon Press.
--. (1996). Jules Coleman, legal positivism, and legal authority. Quinnipiac Law Review,
16, 241-254.
--. (2001). John Austin. In E. N. Zalta (Ed.) Stanford encyclopedia of philosophy,
http://plato.stanford.edu.
Campbell, T. D. (1996). The Legal theory of ethical positivism. Aldershot: Dartmouth
Publishing.
--. (Ed.) (1999). Legal positivism. Aldershot: Ashgate Publishers.
Coleman, J. L. (1998). Second thoughts and other first impressions. In B. Bix (Ed.). Analyzing
Law: New Essays in Legal Theory (pp. 257-322). Oxford: Clarendon Press.
--. (Ed.) (2001). Hart's postscript: essay on the postscript of the concept of law. Oxford:
Oxford University Press.
--. (2000). Constraints on the criteria of legality. Legal Theory, 6, 171-183.
45
Dare, T. (1997). Wilfrid Waluchow and the argument from authority. Oxford Journal of Legal
Studies, 17, 347-66.
Endicott, T. A. O. (1998). Herbert Hart and the semantic sting. Legal Theory, 4, 283-300.
Fuller, L. L. (1969). The Morality of law (rev. ed.) New Haven: Yale University Press.
Gardner, J. (2002). Legal positivism: 5 myths. American Journal of Jurisprudence, 46,
199-227.
George, R. P. (Ed.). (1994). The Autonomy of law: essays on legal positivismOxford:
Clarendon Press.
Green, L. The Concept of law revisited. Michigan Law Review, 94, 1687­1717.
--. (1999). Positivism and conventionalism. Canadian Journal of Law and Jurisprudence,
12, 35-52.
--. (2003). Legal positivism. In E. N. Zalta (ed.) The Stanford encyclopedia of philosophy,
http://plato.stanford.edu.
Himma, K. E. (1999). Incorporationism and the objectivity of moral norms. Legal Theory, 5,
415-434.
--. (1999). Waluchow's defense of inclusive positivism. Legal Theory, 5, 101-116
--. (2002). Inclusive legal positivism. In J. L. Coleman & S. Shapiro (Eds.) & K. E. Himma
(Assoc. Ed.). Oxford handbook of jurisprudence and philosophy of law (pp. 125-65).
Oxford: Oxford University Press.
--. (2002). Substance and method in conceptual jurisprudence and legal theory. Virginia
Law Review, 88, 1119-1228.
Kramer, M. H.. (1999) Coming to grips with law: in defense of positive legal positivism.
Legal Theory, 5, 171-200.
--. (1999). In Defense of legal positivism: law without trimmings. Oxford: Oxford University
Press.
--. (1999). In the Realm of legal and moral philosophy. London: Macmillan.
--. (1999). Requirements, reasons, and Raz: legal positivism and legal duties. Ethics, 109,
375-407.
--. (2002). Throwing light on the role of moral principles in the law: further reflections.
Legal Theory, 8, 115-143.
Lyons, D. (1984). Ethics and the rule of law. Cambridge: Cambridge University Press.
--. (1993). Moral aspects of legal theory. Cambridge: Cambridge University Press.
46
MacCormick, N. (1985). A Moralistic case for a-moralistic law? Valparaiso University
Law Review, 20, 1-41.
--. (1994). Legal reasoning and legal theory (rev. ed.). Oxford: Clarendon Press.
MacCormick N. & Weinberger, O. (Eds). (1986). An Institutional theory of law. Dordrecht:
D. Reidel Publishing Company.
Marmor, A. (1998). Legal conventionalism. Legal Theory, 4, 509-531.
--. (2001). Positive law and objective values. Oxford: Clarendon Press.
--. (2002). "The Pure theory of law," In E. N. Zalta (Ed.). Stanford encyclopedia of philosophy,
http://plato.stanford.edu/
Moore, L. (2002). Description and analysis in The Concept of Law: a response to Stephen
Perry. Legal Theory, 8, 91-114.
Moore, M. (1998). Hart's concluding scientific postscript. Legal Theory, 4, 301-327.
Murphy, L. (2001) The Political question of the concept of law. In J. L. Coleman (Ed.).
Hart's postscript (pp. 371-409). Oxford: Oxford University Press.
Perry, S. (1989). Second-order reasons, uncertainty and legal theory. Southern California
Law Review, 62, 913-94.
Postema, G. J. (1998). Jurisprudence as practical philosophy. Legal Theory, 4, 329-357.
Schauer, F. (1991). Rules and the rule of law. Harvard Journal of Law and Public Policy,
14, 645-94.
--. (1998). Positivism through thick and thin. In B. Bix (Ed.). Analyzing law: new
essays in legal theory (pp. 65-78). Oxford: Clarendon Press.
Shapiro, S. J., (1998). The Difference that rules make. In B. Bix (Ed.) Analyzing law: new
essays in legal theory (pp. 33-62). Oxford: Clarendon Press.
--. (2000). Law, morality and the guidance of conduct. Legal Theory, 6, 127-170.
Shiner, R. (2002). Legal positivism and the concept of morality. (unpublished manuscript,
presented at the Annual Meeting of the American Philosophical Association, Pacific
Division).
Smith, D. (2001). Authority, meaning and inclusive legal positivism. Modern Law Review,
64, 795-808.
47
Soper, E. P. (1998). Two puzzles from the postscript. Legal Theory, 4, 359-380.
Stavropoulos, N. (1996). Objectivity in law. Oxford: Clarendon Press.
Summers, R. S. (1968). Legal philosophy today ­ an introduction. In R. S. Summers (Ed.).
Essays in legal philosophy (pp.1-21). Oxford: Basil Blackwell.
Waldron, J. (1996). Kant's legal positivism. Harvard Law Review, 109, 1535-1566.
Waluchow, W. J. (1998). The Many faces of legal positivism. University of Toronto Law
Journal, 48, 387-449.
--. (2002). In Pursuit of pragmatic legal theory. Canadian Journal of Law and Jurisprudence,
15, 125-150.
--. (2002). Legal positivism, inclusive versus exclusive. In Routledge on-law encyclopedia of
philsoophy. http://www.rep.routledge.com/.
BRIAN H. BIX
Notes on Contributor Entry
Brian H. Bix is the Frederick W. Thomas Professor of Law and Philosophy at the University of
Minnesota. J.D., Harvard University; D. Phil., Balliol College, Oxford. His other
publications include Jurisprudence: Theory and Context (Sweet & Maxwell, 3rd
ed.,
2003) and Law, Language and Legal Determinacy (Oxford U. Pr. 1993).