## 1. Development and Influence



Legal positivism has a long history and a broad influence. It has
antecedents in ancient political philosophy and is discussed, and the
term itself introduced, in mediaeval legal and political thought (see
Finnis 1996). The modern doctrine, however, owes little to these
forbears. Its most important roots lie in the political philosophies
of Hobbes and Hume, and its first full elaboration is due to Jeremy
Bentham (1748-1832) whose account Austin adopted, modified, and
popularized. For much of the next century an amalgam of their views,
according to which law is the command of a sovereign backed by force,
dominated English philosophical reflection about law. By the
mid-twentieth century, however, this account had lost its influence
among working legal philosophers. Its emphasis on legislative
institutions was replaced by a focus on law-applying institutions such
as courts, and its insistence of the role of coercive force gave way
to theories emphasizing the systematic and normative character of law.
The most important architects of contemporary legal positivism are the
Austrian jurist Hans Kelsen (1881-1973) and the two dominating
figures in the analytic philosophy of law, H.L.A. Hart (1907-92)
and Joseph Raz, among whom there are clear lines of influence, but
also important contrasts. Legal positivism's importance,
however, is not confined to the philosophy of law. It can be seen
throughout social theory, particularly in the works of Marx, Weber,
and Durkheim, and also among many lawyers, including the American
"legal realists" and most contemporary feminist scholars.
Although they disagree on many other points, these writers all
acknowledge that law is essentially a matter of social fact. Some of
them are, it is true, uncomfortable with the label "legal
positivism" and therefore hope to escape it. Their discomfort is
sometimes the product of confusion. Lawyers often use
"positivist" abusively, to condemn a formalistic doctrine
according to which law is always clear and, however pointless or
wrong, is to be rigorously applied by officials and obeyed by
subjects. It is doubtful that anyone ever held this view, but it is in
any case false and has nothing to do with legal positivism. Among the
philosophically literate another, more intelligible, misunderstanding
may interfere. Legal positivism is here sometimes associated with the
homonymic but independent doctrines of logical positivism (the meaning
of a sentence is its mode of verification) or sociological positivism
(social phenomena can be studied only through the methods of natural
science). While there are historical connections and commonalities of
temper among these ideas, they are essentially different. The view
that the existence and content of law depends ultimately on social
facts does not rest on a particular semantic thesis, and it is
compatible with a range of theories about how one investigates the
social world, including non-naturalistic accounts. To say that the
existence of law depends on facts and not on its merits is a thesis
about the *relation* among laws, facts, and merits, and not
otherwise a thesis about the individual relata. Hence, many
traditional "natural law" moral doctrines--including
the belief in a universal, objective morality grounded in human
nature--do not contradict legal positivism. The only influential
positivist *moral* theories are the views that moral norms are
valid only if they have a source in divine commands or in social
conventions. Such theists and relativists apply to morality the
constraints that legal positivists think hold for law.


## 2. The Existence and Sources of Law



Every human society has some form of social order, some way of marking
and encouraging approved behavior, deterring disapproved behavior, and
resolving disputes about that behavior. What then is distinctive of
societies with legal systems and, within those societies, of their
law? Before exploring some positivist answers, it bears emphasizing
that these are not the only questions worth asking about law. While an
understanding of the nature of law requires an account of what makes
law distinctive, it also requires an understanding of what it has
*in common* with other forms of social control. Some Marxists
are positivists about the nature of law while insisting that its
distinguishing characteristics matter less than its role in
replicating and facilitating other forms of domination. (Though other
Marxists disagree: see Pashukanis 1924). They think that the specific
nature of law casts little light on their primary concerns. But one
can hardly know that in advance; it depends on what the nature of law
is.



For Bentham and Austin, law is a phenomenon of societies with a
*sovereign*: a determinate person or group who have supreme and
absolute *de facto* power--they are obeyed by all or most
others but do not themselves similarly obey anyone else. The laws in
that society are a subset of the sovereign's *commands*:
general orders that apply to classes of actions and people and that
are backed up by threat of force or "sanction". This
imperatival theory is positivist, for it identifies the existence of
law with patterns of command and obedience that can be ascertained
without considering whether the sovereign has a moral right to rule or
whether their commands are meritorious. It has two other distinctive
features. The theory is *monistic*: it represents all laws as
having a single form, imposing obligations on their subjects, though
not on the sovereign itself. The imperativalist acknowledges that
ultimate legislative power may be self-limiting, or limited externally
by what public opinion will tolerate, and also that legal systems
contain provisions that are not imperatives (for example, permissions,
definitions, and so on). But they regard these as part of the
non-legal material that is necessary for every legal system. (Austin
is a bit more liberal on this point). The theory is also
*reductivist*, for it maintains that the normative language
used in describing and stating the law--talk of authority,
rights, obligations, and so on--can all be analyzed without
remainder in factual terms, typically as concatenations of statements
about power and obedience.



Imperatival theories are now without influence in legal philosophy
(but see Ladenson 1980 and Morison 1982). What survives of their
outlook is the idea that legal theory must ultimately be rooted in
some account of the political system, an insight that came to be
shared by all major positivists save Kelsen. Their particular
conception of a society under a sovereign commander, however, is
friendless (except among Foucauldians, who strangely take this relic
as the ideal-type of what they call "juridical" power). It
is clear that in complex societies there may be no one who has all the
attributes of sovereignty, for ultimate authority may be divided among
organs and may itself be limited by law. Moreover, sovereignty is a
normative concept. A legislator is one who has *authority* to
make laws, and not merely someone with great social power, and it is
doubtful that "habits of obedience" is a candidate
reduction for explaining authority. To distinguish genuine obedience
from coincidental compliance we need something like the idea of
subjects being oriented to, or guided by, the commands. Explicating
this will carry us far from the power-based notions with which
classical positivism hoped to work. The imperativalists' account
of the character of individual laws is also subject to decisive
objections (Hart 1961 [2012: 26-78]; and Hacker 1973). Treating
all laws as commands conceals important differences in their social
functions, in the ways they operate in practical reasoning, and in the
sort of justifications to which they are liable. For instance, laws
conferring the power to marry command nothing; they do not obligate
people to marry, or even to marry according to the prescribed
formalities. Nor is reductivism any more plausible here: we speak of
legal obligations when there is no probability of sanctions being
applied and when there is no provision for sanctions (as in the duty
of courts to apply the law). Moreover, we take the existence of legal
obligations to be a *reason for* imposing sanctions, not a
consequence or constituent of it.



Hans Kelsen retains the imperativalists' monism but abandons
their reductivism. On his view, law is characterized by a *singular
form* and *basic norm*. The form of every law is that of a
conditional order, directed at the courts, to apply sanctions if a
certain behavior (the "delict") is performed. On this
view, law is an indirect system of guidance: it does not tell subjects
what to do; it tells *officials* what to do to its subjects
under certain conditions. Thus, what we ordinarily regard as the legal
duty not to steal is for Kelsen merely a logical correlate of the
primary norm which stipulates a sanction for stealing (1945 [1961:
61]). The objections to imperatival monism apply also to this more
sophisticated version: the reduction misses important facts, such as
the point of having a prohibition on theft; the law is not indifferent
between, on the one hand, people not stealing and, on the other,
stealing and suffering the sanctions. But in one respect the
conditional sanction theory is in worse shape than is imperativalism,
for it has no way to fix on the delict as the duty-defining condition
of the sanction--that is but one of a large number of relevant
antecedent conditions, including the legal capacity of the offender,
the jurisdiction of the judge, the constitutionality of the offense,
and so forth. Which among all these is the content of a legal
duty?



Kelsen's most important contribution lies in his attack on
reductivism and his doctrine of the "basic norm". He
maintains that law is a normative domain and must understood as such.
Might does not make right--not even legal right--so the
philosophy of law must explain the fact that law imposes obligations
on its subjects. Moreover, law is a normative *system*:
"Law is not, as it is sometimes said, a rule. It is a set of
rules having the kind of unity we understand by a system" (1945
[1961: 3]). For the imperativalists, the unity of a legal system
consists in the fact that all its laws are commanded by one sovereign.
For Kelsen, it consists in the fact that they are all links in one
chain of authority. For example, a by-law is legally valid because it
is created by a corporation lawfully exercising the powers conferred
on it by the legislature, which confers those powers in a manner
provided by the constitution, which was itself created in a way
provided by an earlier constitution. But what about the very first
constitution, historically speaking? Its authority, says Kelsen, is
"presupposed". The condition for interpreting any legal
norm as binding is that the first constitution is validated by the
following "basic norm:" "*the original
constitution is to be obeyed*". Now, the basic norm cannot
be a legal norm--we cannot explain the bindingness of law by
reference to more law without an infinite regress. Nor can it be a
social fact, for Kelsen maintains that the reason for the validity of
a norm must always be another norm--no ought from is. It follows,
then, that a legal system must consist of norms all the way down. It
bottoms in a hypothetical, transcendental norm that is the condition
of the intelligibility of any (and all) other norms as binding. To
"presuppose" this basic norm is not to endorse it as good
or just--presupposition is a cognitive stance only--but it
is, Kelsen thinks, the necessary precondition for a non-reductivist
account of law as a normative system.



There are many difficulties with this, not least of which is the fact
that if we are going to accept the basic norm as the solution it is
not clear what we thought was the problem in the first place. One
cannot say both that presupposing the basic norm is what validates all
inferior norms and also that an inferior norm is part of the legal
system only if it is connected by a chain of validity to the basic
norm. We need a way into the circle. Moreover, it draws the boundaries
of legal systems incorrectly. The Canadian Constitution of 1982 was
lawfully created by an Act of the U.K. Parliament, and on that basis
Canadian law and English law should be parts of a single legal system,
rooted in one basic norm: "The (first) U.K. constitution is to
be obeyed". Yet English law is not binding in Canada, and a
purported repeal of the Constitution Act by the U.K. would be without
legal effect there.



If law cannot ultimately be grounded in force, or in a presupposed
norm, on what does its authority rest? The most influential solution
is perhaps H.L.A. Hart's. His solution resembles Kelsen's
in its emphasis on the normative foundations of legal systems, but
Hart rejects Kelsen's transcendentalist, Kantian view of
authority in favor of an empirical, Weberian one. For Hart, the
authority of law is social. The ultimate criterion of validity in a
legal system is neither a legal norm nor a presupposed norm, but a
social rule that exists only because it is actually
*practiced,* that is, used to guide conduct. Law ultimately
rests on custom: customs about who shall have the authority to decide
disputes, what they shall treat as binding reasons for decision, i.e.,
as sources of law, and how laws may be changed. Of these three
"secondary rules", as Hart calls them, the
source-determining *rule of recognition* is most important, for
it specifies the ultimate criteria of validity in the legal system. It
exists only because it is practiced by officials, and it is not only
that the recognition rule best explains their practice, it is the rule
to which they actually appeal in arguments about what standards they
are bound to apply. Hart's account is therefore in one sense
conventionalist (see Marmor 1998 and Coleman 2001): ultimate legal
rules are social norms, although they are neither the product of
express agreement nor conventions in the Schelling-Lewis sense (see
Green 1999). Thus for Hart too the legal system is rule-based all the
way down, but at its root is a social norm that has the kind of
normative force that customs have. It is a regularity of behavior
regarding which officials take "the internal point of
view:" they use it as a standard for guiding and evaluating
their own and others' behavior, and this use is displayed in
their conduct and speech, including the resort to various forms of
social pressure to support the rule and the ready application of
normative terms such as "duty" and
"obligation" when invoking it.



Law, then, has its ultimate basis in the behaviors and attitudes of
its officials. In the eyes of some this still seems to imply a
mystifying reduction: how can we generate the oughts of the legal
world from the is of official consensus? Concerns of this type part
motivate Scott Shapiro's understanding of law and his attempt to
break with Hart's theory: laws, he suggests, should be conceived
of as "generalized plans, or planlike norms, issued by those who
are authorized to plan for others" (2011: 155). Understanding
law on the model of social planning, Shapiro suggests, frees us from
misplaced concerns about its metaphysical basis. Just as you or I can
adopt a plan for our day just by willing it, so a legal system's
officials can create or recognize plans for its subjects. To the
extent there remains an issue, however, it is not clear that the
notion of planning itself offers any deeper explanation. To begin
with, planning, whether by an individual or a group, involves setting
rules with the aim of achieving certain ends. So the ontology of plans
folds into and becomes part of the more general ontology of rules on
which Hart was rightly focused. Second, it is unclear whether the
mechanics of law are accurately captured under the label of planning
(is the law against theft, for example, to be thought of as a plan
that people not deprive others of their property?--a somewhat
implausible reading of the relevant injunction--or is the
planning element exhausted by the decision to create the prohibition,
in which case the law is not the plan). Nonetheless, Shapiro's
account helpfully reminds us that the theoretical complexity of law as
a social kind does not render implausible an understanding of its
foundation based in the everyday actions of its agents. In this he
joins Hart.



It is an important feature of Hart's account that the rule of
recognition is an *official* custom, and not a standard
necessarily shared by the broader community. If the
imperativalists' picture of the political system was pyramidal
power, Hart's is more like Weber's rational bureaucracy.
Law is normally a technical enterprise, characterized by a division of
labor. Ordinary subjects' contribution to the existence of law
may therefore amount to no more than passive compliance, and in an
extreme case perhaps less than this. Thus, Hart's necessary and
sufficient conditions for the existence of a legal system are that




> 
> 
> those rules of behavior which are valid according to the
> system's ultimate criteria of validity must be generally obeyed,
> and...its rules of recognition specifying the criteria of legal
> validity and its rules of change and adjudication must be effectively
> accepted as common public standards of official behavior by its
> officials. (1961 [2012: 116]) 
> 
> 
> 



And this division of labor is not a normatively neutral fact about
law; it is politically charged, for it sets up the possibility of law
becoming remote from the life of a society, a hazard to which Hart is
acutely alert (1961 [2012: 117]; cf. Waldron 1999 and Green 2008).



Although Hart introduces the rule of recognition through a speculative
anthropology of how it might emerge in response to deficiencies in a
customary social order, he is not committed to the view that law is a
cultural achievement. To the contrary, the idea that legal order is
always a good thing, and that societies without it are deficient, is a
familiar element of many *anti*-positivist views, beginning
with Henry Maine's criticism of Austin on the ground that his
theory would not apply to certain Indian villages. The objection
embraces the error it seeks to avoid. It imperialistically assumes
that it is always a bad thing to lack law, and then makes a dazzling
inference from ought to is: if it is good to have law, then each
society must have it, and the concept of law must be adjusted to show
that it does. If one thinks that law is a many splendored thing, one
will be tempted by a very wide understanding of law, for it would seem
improper to charge others with missing out. Positivism releases the
harness. Law is a distinctive form of political order, not a moral
achievement, and whether it is necessary or even useful depends
entirely on its content and context. Societies without law may be
perfectly adapted to their environments, missing nothing.



A positivist account of the existence and content of law, along any of
the above lines, offers a theory of the *validity* of law in
one of the two main senses of that term (see Harris 1979:
107-111). Kelsen says that validity is the specific mode of
existence of a norm. In this sense a valid law is one that is
*systemically valid* in the jurisdiction--it is part of
the legal system, and identified as such by virtue of its dependence
on the system's social sources. The idea is distinct from that
of validity as moral propriety, i.e., a sound justification for
respecting the norm. For the legal positivist, this depends on the
norm's merits. One indication that these senses differ is that
one may know that a society has a legal system, and know what its laws
are, without having any idea whether they are morally justified. For
example, one may know that the law of ancient Athens included the
punishment of ostracism without knowing whether it was justified,
because one does not know enough about its effects, about the social
context, and so forth.



No legal positivist argues that the *systemic validity* of law
establishes its *moral validity*, i.e., that it should be
obeyed by subjects or applied by judges. Even Hobbes, to whom this
view is sometimes ascribed, required that law actually be able to keep
the peace, failing which we owe it nothing. Bentham and Austin, as
utilitarians, hold that such questions always turn on the
consequences, and both acknowledge that disobedience is therefore
sometimes fully justified. Kelsen insists that "The science of
law does not prescribe that one ought to obey the commands of the
creator of the constitution" (1960 [1967: 204]). Hart believes
that law may generate a *prima facie* duty to obey, grounded in
but also limited by fairness--so there is no obligation to unfair
or pointless laws (Hart 1955: 185-186). Raz goes further still,
arguing that there isn't even a *prima facie* duty to
obey the law, not even in a just state (Raz 1979 [2009:
233-249]). The peculiar accusation that positivists believe the
law is always to be obeyed is without foundation. Indeed, Hart's
own view is that an overweening deference to law consorts more easily
with theories that imbue it with moral ideals, permitting 



> 
> 
> an enormous overvaluation of the importance of the bare fact that a
> rule may be said to be a valid rule of law, as if this, once declared,
> was conclusive of the final moral question: "Ought this law to
> be obeyed?" (Hart 1958: 75)
> 
> 
> 


## 3. Moral Principles and the Boundaries of Law



The most influential criticisms of legal positivism all flow, in one
way or another, from the suspicion that it fails to give morality its
due. A theory that insists on the facticity of law seems to contribute
little to our understanding that law has important functions in making
human life go well, that the rule of law is a prized ideal, and that
the language and practice of law is highly moralized. Accordingly,
positivism's critics maintain that the most important features
of law are not to be found in its source-based character, but in
law's capacity to advance the common good, to secure human
rights, or to govern with integrity.



It is beyond doubt that moral and political considerations bear on
legal philosophy. As Finnis says, the reasons we have for
establishing, maintaining or reforming law include moral reasons, and
these reasons therefore shape our legal concepts (1980 [2011:
266-273] and 1996: 204). But *which* concepts? If one
accepts, as Finnis does, that the existence and content of law can be
identified without recourse to moral argument, and that "human
law is artefact and artifice; and not a conclusion from moral
premises" (1996: 205), it becomes hard to see how the natural
law theory he develops rivals rather than accommodates the truth of
legal positivism (see Gardner 2001, 225-227). This
vitiates also Lon Fuller's criticisms of Hart (Fuller 1958 and
1964). Fuller has two main points. First, he thinks that it
isn't enough for a legal system to rest on customary social
rules, since law could not guide behavior without also being at least
minimally clear, consistent, public, prospective and so on--that
is, without exhibiting to some degree those virtues collectively
called "the rule of law". It suffices to note that this is
consistent with law being source-based. Even if moral properties were
identical with, or supervened upon, these rule-of-law properties, they
do so in virtue of their rule-like character. Whatever virtues inhere
in or follow from clear, consistent, prospective, and open practices
can be found not only in law but in all other social practices with
those features, including custom and positive morality. And such
virtues, if they exist, are minor: there is little, if anything, to be
said in favor of a clear, consistent, prospective, public and
impartially administered system of racial segregation, for
example. Fuller's second worry is that if law is a matter of
fact, then we are without an explanation of the duty to obey. He asks
how "an amoral datum called law could have the peculiar quality
of creating an obligation to obey it" (Fuller 1958: 656). One
possibility he neglects is that it doesn't. But even if Fuller
is right in his unargued assumption, the "peculiar
quality" whose existence he doubts is a familiar feature of many
practices. Compare promises: whether a society has a practice of
promising, and what someone has promised to do, are matters of social
fact. Yet promising creates moral obligations of performance or
compensation. An "amoral datum" may indeed figure,
together with other premises, in a sound argument to moral
conclusions.



While Finnis and Fuller's views are thus compatible with the
positivist thesis, the same cannot be said of Ronald Dworkin's
important works (Dworkin 1978, 1986 and 2011). Positivism's most
influential critic rejects the theory on every conceivable level. He
denies that there can be *any* general theory of the existence
and content of law; he denies that local theories of particular legal
systems can identify law without recourse to its merits, and he
rejects the whole institutional focus of positivism. A theory of law
is for Dworkin a theory of how cases ought to be decided and it
begins, not with an account of political organization, but with an
abstract ideal regulating the conditions under which governments may
use coercive force over their subjects. Coercion must not be deployed,
he claims, 



> 
> 
> except as licensed or required by individual rights and
> responsibilities flowing from past political decisions about when
> collective force is justified. (Dworkin 1986: 93) 
> 
> 
> 



A society has a legal system only when, and to the extent that, it
honors this ideal, and its law is the set of all considerations that
the courts of such a society would be morally justified in applying,
whether or not those considerations are determined by any source. To
identify the law of a given society we must always engage in moral and
political argument, for the law is whatever requirements are
consistent with an interpretation of its legal practices that shows
them to be best justified in light of this animating ideal. In
addition to these philosophical considerations, Dworkin invokes two
features of the phenomenology of judging, as he sees it. He finds deep
*controversy* among lawyers and judges about how important
cases should be decided, and he finds *diversity* in the
considerations that they hold relevant to deciding them. The
controversy suggests to him that law cannot rest on an official
consensus, and the diversity suggests that there is no single social
rule that validates all relevant reasons, moral and non-moral, for
judicial decisions.



Dworkin's rich and complex arguments attracted various lines of
reply from positivists. One response denies the relevance of the
phenomenological claims. Controversy is a matter of degree, and a
consensus-defeating amount of it is not proved by the existence of
adversarial argument in the high courts, or indeed in any courts. As
important is the broad range of settled law that gives rise to few
doubts and which guides social life *outside* the courtroom
(see Leiter 2009). As for the diversity argument, so far from being a
refutation of positivism, this is an entailment of it. Positivism
identifies law, not with all valid reasons for decision, but only with
the source-based subset of them. It is no part of the positivist claim
that the rule of recognition tells us how to decide cases, or even
identifies all relevant reasons for a decision. Positivists accept
that moral, political or economic considerations are properly
operative in legal decisions, just as linguistic or logical ones are.
*Modus ponens* holds in court as much as outside, but not
because it was enacted by the legislature or decided by the judges,
and the fact that there is no social rule that validates both
*modus ponens* and also the Municipalities Act is true but
irrelevant. The authority of principles of logic (or morality) is not
something to be explained by legal philosophy; the authority of acts
of Parliament must be; and accounting for the difference is a central
task of the philosophy of law.



Other positivists respond differently to Dworkin's
phenomenological points, accepting their relevance but modifying the
theory to accommodate them. So-called "inclusive
positivists" (e.g., Soper, Lyons, Coleman, Waluchow (to whom the
term is due), Kramer and Himma) argue that the merit-based
considerations may indeed be part of the law, if they are explicitly
or implicitly made so by source-based considerations. For example,
Canada's constitution explicitly authorizes for breach of
Charter rights, "such remedy as the court considers appropriate
and just in the circumstances". In determining which remedies
might be legally valid, judges are thus expressly told to take into
account their morality. And judges may develop a settled practice of
doing this whether or not it is required by any enactment; it may
become customary practice in certain types of cases. Reference to
moral principles may be implicit in the web of judge-made law, for
instance in the common law principle that no one should profit from
his own wrongdoing. Such moral considerations, inclusivists claim, are
part of the law *because the sources make them so*, and thus
Dworkin is right that the existence and content of law might turn on
its merits, and wrong only in his explanation of this fact. Legal
validity depends on morality, not because of the interpretative
consequences of some ideal about how the government may use force, but
because that is one of the things that may be customarily recognized
as an ultimate determinant of legal validity. It is the sources that
*make* the merits relevant.



To understand and assess this response some clarifications are needed.
First, it is not plausible to hold that the merits are relevant to a
judicial decision *only* when the sources make them so. It
would be odd to think that justice is a reason for decision only
because some *source* directs an official to decide justly. It
is of the nature of justice that it properly bears on certain
controversies. In legal decisions, especially important ones, moral
and political considerations are present of their own authority; they
do not need sources to propel them into action. On the contrary, we
expect to see a source--a statute, a decision, or a
convention--when judges are constrained *not* to appeal
directly to the merits (see Raz 2004a). Second, the fact that there is
moral language in judicial decisions does not establish the presence
of moral tests for law, for sources come in various guises. What
sounds like moral reasoning in the courts is sometimes really
source-based reasoning. For example, when the Supreme Court of Canada
says that a publication is criminally "obscene" only if it
is harmful, it is not applying J.S. Mill's harm principle, for
what that court means by "harmful" is that which is
*regarded by the community* as degrading or intolerable. That
is a source-based test, not a moral one. This is just one of many
appeals to positive morality, i.e., to the moral customs actually
practiced by a given society, and no positivist denies that positive
morality may be a source of law. Moreover, it is important to remember
that law is dynamic and that even a decision that does apply morality
itself *becomes* a source of law, in the first instance for the
parties and possibly for others as well. Over time, by the doctrine of
precedent where it exists or through the gradual emergence of an
interpretative convention where it does not, this gives a factual edge
to normative terms. Thus, if a court decides that money damages are in
some instances *not* a "just remedy" then this fact
will join with others in fixing what "justice" means for
these purposes. This process may ultimately detach legal concepts from
their moral analogs (thus, legal "murder" may require no
intention to kill, legal "fault" no moral blameworthiness,
an "equitable" remedy may be manifestly unfair, etc.).
Bearing in mind these complications, however, there undeniably remains
a great deal of moral reasoning in adjudication. Courts are often
called on to decide what would reasonable, fair, just, cruel, etc. by
explicit or implicit requirement of statute or common law, or because
this is the only proper or intelligible way to decide. When the law
itself licenses such reasoning should we understand it, with the
inclusive positivist, to incorporate moral standards, or, as per the
views of their rival, the exclusive positivist, only to make reference
to moral principles?



Exclusive positivists offer two main arguments for stopping at social
sources. The first is due to Raz (1994: 201-37) and has to do
with law's role in practical reasoning (for criticism see Perry
1989, Waluchow 1994, Coleman 2001, Dworkin 2002, Kramer 2004 and
Himma 2019). Although law does not necessarily have legitimate authority,
Raz suggests it lays claim to it, and can intelligibly do so only if
it is the kind of thing that *could* have legitimate authority.
It may fail, therefore, in certain ways only, for example, by being
unjust, pointless, or ineffective. But law cannot fail to be a
*candidate* authority, for it is constituted in that role by
our political practices. According to Raz, practical authorities
mediate between subjects and the ultimate reasons for which they
should act. Authorities' directives should be based on such
reasons, and they are justified only when compliance with the
directives makes it more likely that people will comply with the
underlying reasons that apply to them. But they can do *that*,
he suggests, only if is possible to know what the directives require
independent of appeal to those underlying reasons. If law were to
incorporate the moral standards to which it refers it would no longer
be able to play this mediating role; identifying the law would require
identifying the reasons underlying it. Because the nature of law is
partly determined by its role in giving practical guidance, Raz
concludes, there is theoretical reason for stopping at source-based
considerations.



The second argument challenges an underlying idea of inclusive
positivism, what we might call the Midas Principle. "Just as
everything King Midas touched turned into gold, everything to which
law refers becomes law ..." (Kelsen 1945 [1961: 161]).
Kelsen thought that it followed from this principle that 



> 
> 
> It is...possible for the legal order, by obliging the
> law-creating organs to respect or apply certain moral norms or
> political principles or opinions of experts to transform these norms,
> principles, or opinions into legal norms, and thus into sources of
> law. (Kelsen 1945 [1961: 132]) 
> 
> 
> 



(Though he regarded this transformation as effected by a sort of tacit
legislation.) If sound, the Midas Principle holds in general and not
only with respect to morality, as Kelsen makes clear. Suppose then
that the Income Tax Act penalizes overdue accounts at 8% per annum. In
a relevant case, an official can determine the content of a legal
obligation only by calculating compound interest. Does this make
mathematics part of the law? A contrary indication is that it is not
subject to the rules of change in a legal system--neither courts
nor legislators can repeal or amend the law of commutativity. The same
holds of other social norms, including the norms of foreign legal
systems. A conflict-of-laws rule may direct a Canadian judge to apply
Mexican law in a Canadian case. The *conflicts rule* is
obviously part of the Canadian legal system. But the rule of Mexican
law is not, for although Canadian officials can decide whether or not
to apply it, they can neither change it nor repeal it, and the best
explanation for its existence and content makes no reference to
Canadian society or its political system. In like manner, moral
standards, logic, mathematics, principles of statistical inference, or
English grammar, though all properly applied in cases, are not
themselves the law, for legal organs have applicative but not creative
power over them. The inclusivist thesis is actually groping towards an
important, but different, truth. Law is an *open* normative
system (Raz 1975 [1990: 152-154]): it adopts and enforces many
other standards, including moral norms and the rules of social groups.
There is no warrant for adopting the Midas Principle to explain how or
why it does this.



As noted above, Dworkin's arguments against positivism depend
upon claims about the phenomenology of adjudication and about the
constraints imposed on jurisprudence by legal disagreement. Mark
Greenberg's recent work takes as its starting point many of
Dworkin's claims, but his conclusions are in several ways more
radical (see Greenberg 2004 and 2014). Greenberg's central
argument against positivism is methodological: no one, he suggests,
would deny that the content of the law depends at least in part upon
social facts. However, the question of *which* facts--the
semantic content or intended effect of legislation, for
example--cannot be answered by reference to further of the same:
"law practices...cannot determine their own
relevance" (2004: 185). Appeal must therefore be made to other
kinds of considerations--for Greenberg, considerations about the
moral import of our social practices. It is positivism's error
to suggest that law could be practice-based all the way down. That the
content of law depends upon social sources, however, is a truth borne
out by law in general, as opposed to being established within local
legal practices. There is a categorical difference between the
validity of the sources thesis--a truth about law as a kind of
social practice--and the claim that in the UK, for example,
statute renders it is illegal to drive above 70 miles an hour on the
motorway. In this way the former explains the latter without
circularity, and without the need for appeal to morality.


## 4. Law and Its Merits



It may clarify the philosophical stakes in legal positivism by
comparing it to a number of other theses with which it is sometimes
wrongly identified, and not only by its opponents (see also Hart 1958,
Fusser 1996, and Schauer 1996).


### 4.1 The Fallibility Thesis



Law does not necessarily satisfy the conditions by which it is
appropriately assessed (Lyons 1984: 63; Hart 1961 [2012:
185-186)]. Law should be just, but it may not be; it should
promote the common good, but sometimes it doesn't; it should
protect moral rights, but it may fail miserably. This we may call the
moral fallibility thesis. The thesis is correct, but it is not the
exclusive property of positivism. Aquinas accepts it, Fuller accepts
it, Finnis accepts it, and Dworkin accepts it. Only a crude
misunderstanding of ideas like Aquinas's claim that "an
unjust law seems to be no law at all" might suggest the
contrary. Law may have an essentially moral character and yet be
morally deficient. Even if every law always does one kind of justice
(formal justice; justice according to law), this does not entail that
it does every kind of justice. Even if every law has a *prima
facie* claim to be applied or obeyed, it does not follow that it
has such a claim all things considered. The gap between these partial
and conclusive judgments is all a natural law theory needs to
accommodate the fallibility thesis. It is sometimes said that
positivism gives a more secure *grasp* on the fallibility of
law, for once we see that it is a social construction we will be less
likely to accord it inappropriate deference and better prepared to
engage in a clear-headed moral appraisal of the law. This claim
appealed to several positivists, including Bentham and Hart. But while
this might follow from the truth of positivism, it cannot provide an
independent argument for it. If law has an essentially moral character
then it is obfuscating, not clarifying, to describe it as a
source-based structure of governance.


### 4.2 The Separability Thesis



At one point, Hart identifies legal positivism with 



> 
> 
> the simple contention that it is no sense a necessary truth that laws
> reproduce or satisfy certain demands of morality, though in fact they
> have often done so. (1961 [2012: 185-186]) 
> 
> 
> 



Many other philosophers, encouraged also by the title of Hart's
famous essay, "Positivism and the Separation of Law and
Morals", (1958) treat the theory as the denial that there is a
necessary connection between law and morality--they must be in
some sense "separable" even if not in fact separate
(Coleman 1982). The separability thesis is generally construed so as
to tolerate any *contingent* connection between morality and
law, provided only that it is *conceivable* that the connection
might fail. Thus, the separability thesis is consistent with all of
the following: (i) moral principles may be part of the law; (ii) law
is usually, or even always in fact, valuable; (iii) the best
explanation for the content of a society's laws includes
reference to the moral ideals current in that society; and (iv) a
legal system cannot survive unless it is seen to be, and thus in some
measure actually is, just. All four claims are counted by the
separability thesis as contingent connections only; they do not hold
of all *possible* legal systems--they probably don't
even hold of all historical legal systems. As merely contingent
truths, it is said that they do not affect the concept of law itself.
If we think of the positivist thesis this way, we might interpret the
difference between exclusive and inclusive positivism in terms of the
scope of the modal operator:


* (EP) It is necessarily
the case that there is no connection between law and
morality.
* (IP) It is not
necessarily the case that there is a connection between law and
morality.



In reality, however, legal positivism is not to be identified with
either thesis: both are false. There are many necessary
"connections", trivial and non-trivial, between law and
morality. As John Gardner notes, legal positivism takes a position on
only one of them; it rejects any *dependence* of the existence
of law on its merits (Gardner 2001). And with respect to this
dependency relation, legal positivists are concerned with much more
than the relationship between law and *morality*, for in the
only sense in which they insist on a separation of law and morals they
must insist also--and for the same reasons--on a separation
of law and economics.



To exclude this dependency relation, however, is to leave intact many
other interesting possibilities. For instance, it is possible that
moral value *derives* from the existence of law (Raz 1975
[1990: 165-170]). If Hobbes is right, any order is better than
chaos and in some circumstances order may be achievable only through
positive law. Or perhaps in a Hegelian way every existing legal system
expresses deliberate governance in a world otherwise dominated by
chance; law is the spirit of the community come to self-consciousness.
Notice that these claims are consistent with the fallibility thesis,
for they do not deny that these supposedly good things might also
bring evils, such as too much order or the will to power. Perhaps such
derivative connections between law and morality are thought innocuous
on the ground that they show more about human nature than they do
about the nature of law. The same cannot be said of the following
necessary connections between law and morality, each of which goes to
the heart of our concept of law (on which see further Green 2008):


* (1) Necessarily, law
deals with moral matters.



Kelsen writes, 



> 
> 
> Just as natural and positive law govern the same subject-matter, and
> relate, therefore, to the same norm-object, namely the mutual
> relationships of men--so both also have in common the universal
> form of this governance, namely *obligation*. (Kelsen 1928
> [1973: 34]) 
> 
> 
> 



This is a matter of the content of all legal systems. Where there is
law there is also morality, and they regulate the same matters by
analogous techniques. Of course to say that law deals with
morality's subject matter is not to say that it does so well,
and to say that all legal systems create obligations is not to endorse
the duties so created. This notion is distinct from Hart's
"minimum content" thesis according to which there are
basic rules governing violence, property, fidelity, and kinship that
any legal system must encompass if it aims at the survival of social
creatures like ourselves (Hart 1961 [2012: 193-200]). Hart
regards this as a matter of "natural necessity" and in
that measure is willing to qualify his endorsement of the separability
thesis. But even a society that prefers national glory or the worship
of gods to survival will charge its legal system with the same tasks
its morality pursues. Unlike the rules of a health club, law has broad
scope and reaches to the most important things in any society,
whatever they may be. Indeed, our most urgent political worries about
law and its claims flow from just this capacity to regulate our most
vital interests, and law's wide reach must figure in any
argument about its legitimacy. (A distinct argument, developed most
fully by Raz (1994) and Gardner (2012a), is that law not only occupies
itself with *moral matters* but makes *moral claims*
over us. For criticism see Kramer 1999: 83-9; Duarte
d'Almeida and Edwards 2014.)


* (2) Necessarily, law is
justice-apt.



In view of the normative function of law in creating and enforcing
obligations and rights, it always makes sense to ask *whether*
law is just, and where it is found deficient to demand reform. Legal
systems are therefore the kind of thing that is *apt for*
appraisal as just or unjust. This is a significant feature of law. Not
all human practices are justice-apt. It makes no sense to ask whether
a certain fugue is just or to demand that it become so. The musical
standards of fugal excellence are pre-eminently internal--a good
fugue is a good example of its genre; it should be melodic,
interesting, inventive etc.--and the further we get from these
internal standards of excellence the more diverse evaluative judgments
about it become. While some formalists flirt with similar ideas about
law, this seems inconsistent with law's place amongst human
practices. Even if law has internal standards of merit--virtues
uniquely its own that inhere in its law-like character--these
cannot preclude or displace its assessment on independent criteria of
justice. A fugue may be at its best when it has all the virtues of
fugacity; but law is *not* best when it excels in legality; law
must also be just. A society may therefore suffer not only from too
little of the rule of law, but also from too much of it. This does not
presuppose that justice is the only, or even the first, virtue of a
legal system. It means that our concern for its justice as one of its
virtues cannot be side lined by any claim of the sort that law's
purpose is to be law, to its most excellent degree. Law stands
continuously exposed to demands for justification, and that too shapes
its nature and role in our lives and culture.


* (3) Necessarily, law is
morally risky.



It is a curious fact that almost all theories that insist on the
essentially moral character of law take law's character to be
essentially good. The gravamen of Fuller's philosophy is that
law is essentially a moral enterprise, made possible only by a robust
adherence to its own inner morality. The thought that the law might
have an inner *immorality* never occurred to him. But, as Hart
recognized, where there is "a union of primary and secondary
rules"--that is to say, wherever there is law--moral
risks emerge as a matter of necessity. There are not only newly
efficient forms of oppression, unavailable in communities with more
diffuse forms of social organization, there are also new vices: the
possible alienation of community and value, the loss of transparency,
the rise of a new hierarchy, and the possibility that some who should
resist injustice may be bought off by the goods that legal order
brings. Although law has its virtues, it also necessarily risks
certain vices, and this marks a connection between law and morality of
a reverse kind.



These three theses establish connections between law and morality that
are both necessary and highly significant. Each of them is consistent
with the positivist thesis that the existence and content of law
depends on social facts, not on the law's merits. Each of them
contributes to an understanding of the nature of law. The once-popular
idea that legal positivism insists on the separability of law and
morality is therefore significantly mistaken.


### 4.3 The Neutrality Thesis



The preceding theses together establish that *law* is not
value-neutral. Although some lawyers regard this idea as a revelation
(and others as provocation) it is in fact banal. The thought that law
could be value neutral does not even rise to falsity--it is
incoherent. Law is a normative system, promoting certain values and
repressing others. Law is not neutral between victim and murderer or
between owner and thief. When people complain of the law's lack
of neutrality, they are in fact voicing very different aspirations,
such as the demand that it be fair, just, impartial, and so forth. A
condition of law's achieving any of these ideals is that it is
not neutral in either its aims or its effects.



Positivism is however sometimes more credibly associated with the idea
that *legal philosophy* is or should be value-neutral. Kelsen,
for example, says, "the function of the science of law is not
the evaluation of its subject, but its value-free description"
(1960 [1967: 68]) and Hart at one point described his work as
"descriptive sociology" (1961 [2012: v]). But a
description of what? "Law" is an anthropocentric subject,
dependent not merely on our sensory embodiment but also, as its
necessary connections to morality show, on our moral sense and
capacities. Legal kinds such as courts, decisions, and rules will not
appear in a purely physical description of the universe and may not
even appear in every social description. (This may limit the prospects
for a "naturalized" jurisprudence; though for a defense of
the contrary view, see Leiter 1997). Legal positivism, to be sure, is
not an "evaluation of its subject", i.e., an evaluation of
*the law*. And to say that the existence of law depends on
social facts does not commit one to thinking that it is a good thing
that this is so (nor does it preclude it: see MacCormick 1985 and
Campbell 1996). But it does not follow that legal philosophy therefore
offers a "value-free description" of its subject. There is
a sense, of course, in which every description is value-laden. It
selects and systematizes only a subset of the infinite number of facts
about its subject. To describe law as resting on customary social
rules is to omit many other truths about it including, for example,
truths about its connection to the demand for paper or silk. What
forms the warrant for our prioritizing the former over the latter?
Finnis (1980 [2011: 3-19]) thinks that the only possibility here
has to do with the moral reasons we might have for wanting law (that
we answer "what?" by answering "why?") and
that the failure of methodological positivism, the failure to achieve
a value-free description of the subject, results in the failure of
legal positivism. But the question of social significance is not
exhausted by our moral register, and especially not only by its
positive valence (on which see Dickson 2001). Others point to the
notion of conceptual or metaphysical truth as setting the bounds of
the question that positivism seeks to answer (for discussion see Raz
2004b). But however these difficult issues are to be resolved, we
should not expect legal positivism itself to contribute much. A thesis
about the nature of law is not at the same time a thesis about how to
understand the nature of law.



It may seem, however, that legal positivism at least requires a stand
on the so-called "fact-value" problem. There is no doubt
that certain positivists, especially Kelsen, believe this to be so. In
reality, positivism may cohabit with a range of views here--value
statements may be entailed by factual statements; values may supervene
on facts; values may be kinds of fact. Legal positivism requires only
that it be in virtue of its facticity rather than its meritoriousness
that something is law, and that we can describe that facticity without
assessing its merits.



Evaluative argument is, of course, central to the philosophy of law
more generally. No legal philosopher can be *only* a legal
positivist. A complete understanding of law requires also an account
of what kinds of things could possibly count as the merits of law
(must law be efficient or elegant as well as just?); of what role law
should play in adjudication (should valid law always be applied?); of
what claim law has on our obedience (is there a duty to obey?); and
also the more practical questions of what laws we should have and
whether we should have law at all. Legal positivism does not aspire to
answer these questions (although cf. Murphy 2014: 88-108 for the
argument that the theory has important first-order implications for
legal practice). Nonetheless, positivism's claim that the
existence and content of law depends only on social facts does give
them shape.