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Philosophy Legal Positivism
by
Michael Sevel, Brian Leiter

Introduction

Legal positivism is one of the leading philosophical theories of the nature of law, and is characterized by two theses: (1) the existence and content of law depends entirely on social facts (e.g., facts about human behavior and intentions), and (2) there is no necessary connection between law and morality—more precisely, the existence and content of a law do not depend on its merits or demerits (e.g., whether or not it lives up to the ideals of justice, democracy, or morality). The theory has enjoyed a large number of adherents since it was first articulated by Jeremy Bentham in the 18th century and has undergone considerable modification and development since then. Legal positivism is accepted today by most Anglophone philosophers of law, though natural law theories, its natural opponents, continue to challenge positivism’s fundamental claims.

General Overviews

The two most important statements of positivism in the 20th century are Hart 1997 (originally published 1961) and Kelsen 1970 (first published in 1934). Hart was influenced by earlier British positivists like Austin and Bentham, as well as the later Wittgenstein, but his has proven to be the most influential text on positivism in the English-speaking world. Hart argues that every legal system is a union of obligation-imposing (“primary”) rules and power-conferring (“secondary”) social rules; in the latter case, a sufficient number of officials of the system accept those rules as guides to their conduct and standards of evaluation of the conduct of other legal participants. The most fundamental secondary rule of the system is what Hart calls a “rule of recognition,” which specifies the ultimate criteria of legal validity (e.g., “what Parliament enacts is law”). Hart’s discussion served as the focal point of nearly all discussions of legal positivism since its publication in 1961. The second edition (Hart 1997) includes a posthumously published postscript in which Hart addresses primarily the criticisms of Ronald Dworkin, a response which has itself spawned a considerable literature. Kelsen’s theory is also one of the great positivist theories of the 20th century and is inspired more by certain themes in European (and particularly Neo-Kantian) philosophy. Kelsen’s texts have been less influential in the Anglophone world and received much less scholarly attention, due no doubt to his difficult and sometimes obscure prose. Green 2003 gives a thorough and up-to-date overview of the various competing positivist theories and contains a short but reliable bibliography for further reading. Leiter 2003 and Shapiro 2007 give useful summaries of the dialectic between positivists and their critics over the past three decades. Gardner 2001 takes a different tack by illuminating the nature of positivism by distinguishing it from other views which are often mistakenly identified as central to positivism.

  • Gardner, John. “Legal Positivism: 5 1/2 Myths.” American Journal of Jurisprudence 46 (2001): 199–227.

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    Extensive and wide-ranging discussion distinguishing legal positivism from many other views with which it is often confused. An important article, though most useful to those with a basic knowledge of the scholarly literature.

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  • Green, Leslie. “Legal Positivism.” In The Stanford Encyclopedia of Philosophy. Edited by Edward N. Zalta. 2003.

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    This is a general but succinct overview of the history and development of positivism since its inception. Also a brief discussion of the broader methodological problem of the role of evaluation in constructing theories of law, an issue which has moved to the forefront of debate among positivists and legal theorists more generally. A good introduction for undergraduates, graduate students, and scholars alike.

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  • Hart, H. L. A. The Concept of Law. 2d ed. Oxford: Clarendon, 1997.

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    Originally published 1961, Hart’s book is by far the most influential statement of legal positivism in the English-speaking world of the 20th century. Hart’s style is admirably clear and accessible, so this is a suitable introduction for undergraduates as well as graduate students and scholars.

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  • Kelsen, Hans. Pure Theory of Law. Translated by Max Knight. Berkeley: University of California Press, 1970.

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    English translation of the second edition of the Reine Rechtslehre, published in 1960 (a significant expansion and revision of the 1934 book of the same name). With Hart 1997, one of the major statements of legal positivism in the 20th century. Kelsen’s positivism, however, has been somewhat less influential among Anglophone legal philosophers. Kelsen is difficult, but he is essential reading for graduate students and scholars.

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  • Leiter, Brian. “Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence.” American Journal of Jurisprudence 48 (2003): 17–51.

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    The first half of the essay gives an overview of Hart’s theory, Dworkin’s criticisms of that theory, and replies to those criticisms and developments of positivism, especially in the work of Raz. Usefully compared with Shapiro 2007. Reprinted in Leiter’s Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford: Oxford University Press, 2007).

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  • MacCormick, Neil. H. L. A. Hart. 2d ed. Stanford, CA: Stanford University Press, 2008.

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    An authoritative introduction to all aspects of Hart’s work in legal philosophy, including his positivist theory of law.

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  • Shapiro, Scott J. “The ‘Hart-Dworkin’ Debate: A Short Guide for the Perplexed.” In Ronald Dworkin. Edited by Arthur Ripstein, 22–55. Cambridge, UK: Cambridge University Press, 2007.

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    The first half of the paper consists of another survey of the dialectic between Hart and his critics, especially Dworkin. Differs from Leiter 2003 in arguing that Dworkin’s Law’s Empire (Dworkin 2003, cited under Dworkin’s Later Criticisms) developed a criticism—how to explain “theoretical disagreements” in law—to which positivists failed to respond. Concludes with a somewhat extravagant “positivist” response to the problem of theoretical disagreement. See also Criticisms of Positivism.

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Anthologies

There are relatively few anthologies of essays devoted entirely to legal positivism. Coleman 2001 is the most recent collection and consists primarily of essays on H. L. A. Hart’s posthumously published postscript to his The Concept of Law (Hart 1997, cited under Dworkin’s Early Criticisms), a classic text of legal positivism, in which Hart answers decades of criticism and revises his theory in part. This collection includes contributions by many leading legal theorists in the English-speaking world and is generally of high quality. The essays in George 1999 are less consistent but contain some useful discussion of the history of positivism and thorough discussion of certain traditional objections to positivism.

  • Coleman, Jules, ed. Hart’s Postscript: Essays on the Postscript to the Concept of Law. New York: Oxford University Press, 2001.

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    An important collection of essays; papers by Raz, Shapiro, Leiter, Perry, and Murphy have generated the most scholarly comment. Many of the papers in this volume are quite technical and often presuppose working knowledge of the scholarly literature, so most suitable for graduate students and scholars.

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  • George, Robert P., ed. The Autonomy of Law: Essays on Legal Positivism. Oxford: Oxford University Press, 1999.

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    Widely used collection with essays on a wide variety of topics related to the central claims of positivism. The quality of the contributions are somewhat uneven; particularly useful are the essays by Raz, Coleman, and Finnis. Recommended for advanced undergraduates, graduate students, and scholars.

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Historical Works

While the idea of posited law dates back to antiquity, the theory of law known as legal positivism has its origins in the works of British utilitarians of the 18th and 19th centuries. Bentham 1988 (originally published in 1776) provides perhaps the first articulation of the idea that there is no necessary connection between law and morality (what is now known as the separability thesis, one of the fundamental claims of positivism). The most famous part of the work is the preface, in which Bentham excoriates William Blackstone in his Commentaries on the Laws of England for confounding what the law of England is and what it ought to be—the avoidance of which is one of positivism’s central tenets. Bentham 1970 sets out a more sophisticated form of positivism that identifies law as a kind of command which expresses the will of a sovereign (a person or group whose directives are habitually obeyed but who does not habitually obey anyone else), and to which sanctions for noncompliance typically attach. This important work has a peculiar history: while completed sometime before 1782, it was never published, and the manuscript was discovered among Bentham’s papers in 1939. (It was not published until 1945, though the Bentham 1970 edition is considered authoritative.) It has been remarked that, had it been published in Bentham’s lifetime, it would have dominated analytic jurisprudence and easily superseded Austin 1995 as the definitive statement of positivism in the 18th and 19th centuries. So although the work in fact had no historical influence and is only now receiving the attention it deserves, it nonetheless serves as a powerful positivist theory. The account in Austin 1995 (originally published in 1832) is a series of lectures given by Austin at the University of London in the late 1820s that, while not very influential during Austin’s lifetime, became the standard statement of legal positivism in the English-speaking world throughout the 19th and early 20th centuries, until the publication of Hart 1997 (which first appeared in 1961). Austin’s positivism is often referred to as the “imperative theory” or “command theory” of law because, as a much simplified and more elegant version of the theory in Bentham 1970, he also defines law as a set of commands backed by threat of sanction by a sovereign. Austin’s legacy was secured in part because his imperative theory was used as a point of departure (and criticism) in Hart 1997, which is the most important account of positivism of the 20th century. Hart dispenses with the notions of command and sovereignty and argues that every legal system is a system of social rules, including “primary,” obligation-imposing rules and “secondary,” power-conferring rules, in which a sufficient number of legal officials accept them as guides to and standards of evaluation of conduct. He further claims that the most fundamental rule of the system is the “rule of recognition,” which specifies the ultimate criteria of legal validity. The positivist theory represented by Kelsen 1970 has been much less influential in the English-speaking world, but it is rich and suggestive nonetheless. Kelsen generally adopts an imperative theory of law (as in Austin 1995) but also understands a law as a norm which provides a conditional order on courts to impose sanctions to legal subjects under particular circumstances. Perhaps his most famous contribution is his doctrine of the “basic norm”: the idea that every legal system contains legal norms which are related by chains of validity that terminate in an (extra-legal) “basic” norm, the existence of which is presupposed by the existence of all other legal norms. Kelsen’s theory is inspired by various (primarily Kantian) themes in European philosophy and accordingly has been more influential in Europe.

  • Austin, John. The Province of Jurisprudence Determined. Edited by Wilfrid E. Rumble. Cambridge, UK: Cambridge University Press, 1995.

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    Originally published 1832, this is the definitive statement of positivism of the 19th century. Lecture 5 contains Austin’s theory of law, in which appears possibly one of the most quoted passages in all of jurisprudence, one which has served as one of the central tenets of positivism (“the existence of law is one thing; its merit or demerit is another”). Austin’s style is easily accessible to undergraduates as well as graduate students and scholars.

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  • Bentham, Jeremy. Of Laws in General. Edited by H. L. A. Hart. London: Athlone, 1970.

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    Written in 1782, this is a magisterial work in legal philosophy and more sophisticated development of the themes sketched in Bentham 1988. Bentham is a notoriously difficult and technical writer, but advanced undergraduates and graduate students with expertise in other areas of philosophy will find it stimulating, as it makes substantial contact with fundamental issues in political philosophy, philosophy of action, philosophy of language, and moral psychology.

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  • Bentham Jeremy. A Fragment on Government. Edited by J. H. Burns and H. L. A. Hart. Cambridge, UK: Cambridge University Press, 1988.

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    Originally published in 1776 and a seminal text in the history of political philosophy. Bentham’s first articulation of broadly positivist themes that are developed at much greater length in Bentham 1970.

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  • Hart, H. L. A. The Concept of Law. 2d ed. Oxford: Clarendon, 1997.

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    Originally published in 1961, Hart’s theory has served as the focal point of nearly all discussions of legal positivism in the English-speaking world in the postwar period. Hart’s style is admirably clear and accessible, so this is a suitable introduction for undergraduates as well as graduate students and scholars.

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  • Kelsen, Hans. Pure Theory of Law. Translated by Max Knight. Berkeley: University of California Press, 1970.

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    English translation of the second edition of the Reine Rechtslehre, published in 1960 (a significant expansion and revision of the 1934 book of the same name). With Hart 1997, one of the two major statements of legal positivism in the 20th century. Kelsen is difficult reading and is thus recommended for graduate students and scholars.

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  • Postema, Gerald J. “Law as Command: The Model of Command in Modern Jurisprudence.” Philosophical Issues 11 (2001): 470–501.

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    An illuminating discussion of the history of the idea of law as a kind of command. Postema traces the idea back to the early modern period and discusses to what extent modern versions of positivism retain the command model. Useful as background to the historical origins of certain assumptions which motivate early accounts of positivism, such as Bentham 1970 and Austin 1995.

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Criticisms of Positivism

One peculiar feature of the recent history of positivism is that its proclaimed critics have often offered objections which, while nominally directed towards positivism, are in fact directed towards other views which have been traditionally mistaken for positivism. The objection posed by Fuller 1958, and discussed more fully in Schauer 1996, continues to inspire similar criticisms of positivism by contemporary theorists, despite being persuasively refuted by Hart 1958. The objection posed by Dworkin 1986 has enjoyed a similar history. The objections set out in Dworkin 1967 and Dworkin 1972 have been most influential and continue to shape debate between positivists and non-positivists. The objection of Finnis 1980 has received less attention, but has grown in importance over the last thirty years, since it concerns the role of evaluation in constructing theories in legal philosophy more generally, whether those theories are positivist or non-positivist.

The Hart-Fuller Debate

In 1957, H. L. A. Hart gave the Holmes Lecture at Harvard Law School in which he defended positivism against a number of objections, notably the mistaken view that positivists endorse legal formalism, the view that judges decide cases mechanically by constructing syllogisms involving rules of law and applying those rules deductively to the facts of the case. Hart also decisively answers the objection (discussed more fully in Schauer 1996 and Fuller 1958, but first articulated by postwar German law professor Gustav Radbruch) that positivism should be rejected on the grounds that positivist judges recognize an unconditional duty to obey and apply the law, no matter how disastrous the consequences (as in the case of judges in Nazi Germany mindlessly applying iniquitous Nazi law, and thus contributing to the success of the regime.) In the following year, Hart’s essay, along with a lengthy reply by Harvard law professor Lon Fuller, was published in the Harvard Law Review (Hart 1958 and Fuller 1958). Fuller argued that, contrary to Hart’s claims, law and morality are inseparable because law has itself an “internal morality” (i.e., standards for its own evaluation). Fuller also defends Radbruch’s view that Nazi “law” was so defective that it was not law at all. This exchange forms what is now commonly referred to as the “Hart-Fuller Debate,” what many consider to be the classic reference point for the opposition between legal positivism and natural law theory. It has been difficult, however, for later theorists to find the precise locus of disagreement in this exchange, since many of Fuller’s criticisms aren’t obviously relevant to any of Hart’s central claims. Despite this unclarity, several international conferences recently convened to celebrate the 50th anniversary of this exchange, and the essays presented at those gatherings, many of high quality, will surely appear in print in the coming years.

  • Fuller, Lon L. “Positivism and Fidelity to Law: A Reply to Professor Hart.” Harvard Law Review 71.4 (1958): 630–672.

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    A response to Hart 1958, in which Fuller challenges Hart’s account of positivism by arguing that law has an “internal morality,” internal standards for its own evaluation, and so the positivists’; insistence on the separation of law and morality must be mistaken. He also attempts to argue that contrary to Hart’s claim, Nazi law was so (morally) defective that it was not law at all.

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  • Hart, H. L. A. “Positivism and the Separation of Law and Morals.” Harvard Law Review 71.4 (1958): 593–629.

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    A widely cited article, Hart discusses the history of positivism in British philosophy and defends positivism against a number of objections. Essential reading, and accessible to undergraduates. Reprinted in Hart’s Essays in Jurisprudence and Philosophy (Oxford: Clarendon, 1983).

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  • Schauer, Frederick. “Positivism as Pariah.” In The Autonomy of Law: Essays on Legal Positivism. Edited by Robert P. George, 31–56. Oxford: Oxford University Press, 1996.

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    Discusses and responds to the objection that positivism should be rejected based on the undesirable moral consequences that follow from accepting it, particularly by judges. The objection is echoed by Fuller 1958 but answered persuasively by Hart 1958, on the grounds that positivism claims no obligation of blind obedience on the part of judges.

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Dworkin’s Early Criticisms

The earliest, important criticisms of modern positivism (as set out in Hart’s The Concept of Law [Hart 1997, cited under General Overviews]) are Dworkin 1967 and Dworkin 1972, universally referred to as “The Model of Rules I” and “The Model of Rules II.” The criticisms of Hart in these essays single-handedly set the agenda for discussion of positivism for the next quarter century. In Dworkin 1967, Dworkin points to certain real legal cases which show, he argues, that there are some principles which judges recognize as binding and use to decide cases that are not accounted for by the positivist “rule of recognition” and that therefore that rule cannot be the “master test” of legal validity in a given legal system, as Hart claims. In Dworkin 1972, Dworkin responds to positivist rejoinders (notably Raz 1972) and argues, purportedly against Hart, that the “rule of recognition” cannot be a “conventional” rule in the sense of being a rule that judges have an obligation to obey simply because they generally converge in following it. (This objection is developed in a somewhat different way in Dworkin’s later work. See Dworkin’s Later Criticisms.) Postema 1982 is an important attempt to show how convergent behavior could generate an obligation to obey, while Green 1999 is a fairly decisive refutation of the idea that the conventionality of the rule of recognition could generate obligations. Dickson 2007 shows that it is not at all clear that Hart is committed to the conventionality thesis. Soper 1977 and Coleman 1982 are important responses to Dworkin that articulate a version of positivism that Hart 1997 calls “Soft Positivism” and is often known as “inclusive” legal positivism (see Inclusive vs. Exclusive Legal Positivism). Hart 1997 is the posthumously published postscript to The Concept of Law (1961) and offers responses to each of Dworkin’s criticisms. It should be noted that much of the subsequent discussion of Dworkin’s criticisms has been taken up with the question of whether Dworkin has accurately represented the views of Hart or any other positivist theory, and if so whether they should even be taken as a critique of those views. Indeed, Hart in his postscript acknowledged that he and Dworkin may simply be engaged in radically different theoretical projects, and so his alleged criticisms are irrelevant to Hart’s ideas. Nevertheless, Dworkin’s early criticisms continue to generate discussion among a variety of legal theorists who insist on their importance.

  • Coleman, Jules L. “Negative and Positive Positivism.” Journal of Legal Studies 11 (1982): 139–164.

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    Defends the idea that the “rule of recognition,” as a conventional practice among legal officials, can incorporate moral or content-based criteria of legal validity if it is the convention of officials to employ such criteria; thus a rule of recognition can explain how Dworkinian “principles” are legally binding. Recommended for graduate students and scholars. Usefully compared with Soper 1977. Reprinted in Ronald Dworkin and Contemporary Jurisprudence, edited by Marshall Cohen (Totowa, NJ: Rowman and Allanheld, 1983).

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  • Dickson, Julie. “Is the Rule of Recognition Really a Conventional Rule?” Oxford Journal of Legal Studies 27.3 (2007): 373–402.

    DOI: 10.1093/ojls/gql032Save Citation »Export Citation »E-mail Citation »

    Argues that Hart did not hold a conventionalist view of the rule of recognition (in the sense to which Dworkin 1972 objects) and shows the limitations of an approach popular among some recent positivist theories, of which Postema 1982 is an example.

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  • Dworkin, Ronald. “The Model of Rules.” University of Chicago Law Review 35.1 (1967): 14–46.

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    In this famous essay, Dworkin objects to Hart’s positivism by pointing to cases in which judges choose not to follow the “settled” law that a rule of recognition validates but instead appeal to controversial moral principles to justify their decisions. Essential reading, and accessible to undergraduates, graduate students and scholars. Reprinted as “The Model of Rules I” in Dworkin’s Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978).

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  • Dworkin, Ronald. “Social Rules and Legal Theory.” Yale Law Journal 81.5 (1972): 855–890.

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    Dworkin’s response to positivist rejoinders such as Raz 1972 and further development of his criticisms of the rule of recognition as a “master test” of legal validity. With Dworkin 1967, the most famous criticisms of positivism in the last thirty years. Essential reading and accessible to undergraduates, graduate students and scholars. Reprinted as “The Model of Rules II” in Dworkin’s Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978).

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  • Green, Leslie. “Positivism and Conventionalism.” Canadian Journal of Law and Jurisprudence 12.1 (1999): 35–52.

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    Thorough criticism of the argument in Postema 1982 and similar approaches. Essential reading for graduate students and scholars.

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  • Hart, H. L. A. “Postscript.” In The Concept of Law. 2d ed. By H. L. A. Hart, 238–276. Oxford: Clarendon, 1997.

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    Hart’s posthumously published response to Dworkin, in which Hart adopts the general approach taken by Coleman 1982 and other responses. An essential text in its own right, but also important in understanding subsequent debate. Recommended for undergraduates, graduate students, and scholars.

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  • Postema, Gerald J. “Coordination and Convention in the Foundations of Law.” Journal of Legal Studies 11.1 (1982): 165–203.

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    Drawing on the coordination and game theory literature, Postema argues for an interpretation of the conventionality of the rule of recognition that avoids Dworkin’s early criticisms. But see Green 1999 for thorough criticism. Suitable for graduate students and scholars.

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  • Raz, Joseph. “Legal Principles and the Limits of Law.” Yale Law Journal 81.5 (1972): 823–854.

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    Argues that, contrary to Dworkin’s argument, appeal by judges to moral principles in deciding cases is compatible with the positivist commitment to law as a system of social rules. Dworkin responds to some of Raz’s arguments in Dworkin 1972. Reprinted in Ronald Dworkin and Contemporary Jurisprudence, edited by Marshall Cohen (Totowa, NJ: Rowman and Allanheld, 1983).

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  • Soper, E. Philip. “Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute.” Michigan Law Review 75 (1977): 473–519.

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    An early response to Dworkin’s criticisms of positivism, arguing that legal positivism is compatible with the existence of legal systems in which, as a matter of actual practice, officials treat moral considerations as relevant to determining the content of law. Usefully compared with Coleman 1982. Reprinted in Ronald Dworkin and Contemporary Jurisprudence, edited by Marshall Cohen (Totowa, NJ: Rowman and Allanheld, 1983).

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Dworkin’s Later Criticisms

In later work, Dworkin takes a different approach to criticizing positivism. Dworkin 1986 argues that positivism cannot account for what he calls “theoretical disagreement” about law: disagreement by legal participants (lawyers, judges) about the proper grounds of law, that is, about the criteria by which the law should be identified. Dworkin thinks that such disagreement, particularly on the part of judges, shows positivism to be inadequate, because, he says, positivism maintains that the criteria of legal validity are what they are in virtue of a consensus about the meaning of the word “law,” and the kind of disagreement he highlights casts doubt on that claim. This objection is often referred to as the “semantic sting” argument against positivism. Despite the fact that the “semantic sting” objection has been decisively refuted and has been shown not to be relevant to a critique of positivism, since positivism is not a semantic theory at all (Raz 2001 offers a thorough response), it has continued to garner attention from legal theorists. Shapiro 2007 has made a case that the “semantic sting” objection can be distinguished from the objection that positivism can not explain theoretical disagreements about law. Leiter 2009 offers a response to Shapiro as to how positivists can address the problem, while Toh 2005 gives an important interpretation of Hart’s metaethical views that provide the resources for a “non-cognitivist” account of theoretical disagreements.

  • Dworkin, Ronald. Law’s Empire. Cambridge, MA: Belknap, 1986.

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    The first chapter sets out the semantic sting argument against positivism, while the rest of the volume is devoted to articulating Dworkin’s own theory of law. Suitable for undergraduates, graduate students, and scholars, but in some ways the presentation of the argument in Shapiro 2007 is clearer and more succinct.

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  • Leiter, Brian. “Explaining Theoretical Disagreement.” University of Chicago Law Review 76 (Summer 2009): 1215–1250.

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    Identifies two positivist explanations for theoretical disagreements: judges are being disingenuous when they pretend to have such disagreements; and judges are making a mistake about the nature of law when they have such disagreements. Suggests that these are better explanations than Dworkin’s, in part through a careful analysis of Riggs v. Palmer, Dworkin’s central example.

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  • Raz, Joseph. “Two Views of the Nature of the Theory of Law: A Partial Comparison.” In Hart’s Postscript: Essays on the Postscript to the Concept of Law. Edited by Jules Coleman, 1–38. Oxford: Oxford University Press, 2001.

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    Thorough criticism of the “semantic sting” argument in Dworkin 1986 and more general remarks about the usefulness of work in the philosophy of language for addressing questions in legal theory.

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  • Shapiro, Scott J. “The ‘Hart-Dworkin’ Debate: A Short Guide for the Perplexed.” In Ronald Dworkin. Edited by Arthur Ripstein, 22–55. Cambridge, UK: Cambridge University Press, 2007.

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    Surveys the dialectic between Hart and Dworkin, arguing that positivists allegedly have failed to explain what Dworkin calls “theoretical disagreement,” that is, disagreements about the criteria of legal validity (or what Dworkin calls “the grounds of law”). Offers its own, somewhat unusual, “positivist” account of theoretical disagreement. Usefully contrasted with Leiter 2009.

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  • Toh, Kevin. “Hart’s Expressivism and His Benthamite Project.” Legal Theory 11.2 (2005): 75–123.

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    A systematic explication of the role of Hart’s non-cognitivist expressivism in his account of the “internal point of view”; provides resources as well for a non-cognitivist explanation of theoretical disagreement. For graduate students and scholars, particularly those having some acquaintance with the relevant literature in metaethics.

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The Possibility of Descriptive Jurisprudence

In Hart 1997 (originally published 1961), the most influential account of positivism in the 20th century, H. L. A. Hart famously claimed that his work was one in “descriptive sociology,” and, later in the postscript to that work, claimed that his account was “morally neutral and has no justificatory aims.” These comments have lead some theorists to question whether a morally neutral description of the law as a complex social phenomenon is even possible—what has come to be called the “methodology problem” in jurisprudence. Finnis 1980 offers an important argument that purports to show that in order to give an account of law, the legal theorist must engage in moral evaluation with respect to the point or function of law. Perry 1995 and Perry 2001 develop the objection further, while Leiter 2003 offers one of the few positivist responses addressing the problem. Dickson 2001 offers another response and provides a useful overview of the debate.

  • Dickson, Julie. Evaluation and Legal Theory. Oxford: Hart, 2001.

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    General overview of the methodology problem in jurisprudence, including criticism of Finnis 1980, Perry 1995, and Perry 2001. Useful as an introduction to the literature and also develops a distinctive position in the debate.

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  • Finnis, John. Natural Law and Natural Rights. Oxford: Clarendon, 1980.

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    Chapter 1 contains an important objection to Hart’s “descriptive” methodology. Finnis’s criticism has led to a broader debate among legal theorists about the role of evaluation in the construction of theories of law, what is sometimes referred to as the “methodology problem” in jurisprudence (of which Dickson 2001 is an overview).

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  • Hart, H. L. A. The Concept of Law. 2d ed. Oxford: Clarendon, 1997.

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    The preface and postscript contains Hart’s discussion of his own methodology employed in constructing his positivist theory. His claim in the preface that his theory is one of “descriptive sociology” provides the starting point for the methodology debate.

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  • Leiter, Brian. “Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence.” American Journal of Jurisprudence 48 (2003): 17–51.

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    The second half of the paper surveys the “methodology problem,” offering criticisms of Finnis 1980, Dickson 2001, and Perry 2001; argues for the relevance of the “naturalistic turn” in philosophy to the problems of jurisprudence. Reprinted in Reprinted in Leiter’s Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford: Oxford University Press, 2007).

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  • Perry, Stephen R. “Interpretation and Methodology in Legal Theory.” In Law and Interpretation: Essays in Legal Philosophy. Edited by Andrei Marmor, 97–136. New York: Oxford University Press, 1995.

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    Poses an objection, more fully articulated in Perry 2001, that Hart’s positivism is not “value-free” or “descriptive” as Hart claims, but that a theory of law requires moral evaluation of its subject matter.

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  • Perry, Stephen R. “Hart’s Methodological Positivism.” In Hart’s Postscript: Essays on the Postscript to the Concept of Law. Edited by Jules Coleman, 311–354. New York: Oxford University Press, 2001.

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    Argues that Hart’s theory is ultimately not a “descriptive-explanatory” one and that in order to explain the normativity of law, legal theorists must engage in moral evaluation. Useful for graduate students and scholars, though some acquaintance of the background literature is presupposed.

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Inclusive vs. Exclusive Positivism

One dominant theme in the positivism literature has been a debate among positivists about the precise nature and content of the rule of recognition, i.e., the social rule in a legal system which provides the criteria of legal validity for that system. Some positivists (e.g., Waluchow 1994, Soper 1977, and Coleman 2001) argue that moral considerations may (though need not) figure in determinations of the existence and content of valid laws. Others (e.g., Raz 1985, Shapiro 2001) argue that moral considerations cannot play such a role if the law is to be capable of serving as a legitimate authority to its subjects. Note that the distinction at issue here is referred to by different scholars using a variety of names; inclusive positivism is sometimes called “soft” positivism or “incorporationism,” while exclusive positivism is sometimes referred to as “hard” or, less frequently, “hard facts” positivism.

  • Coleman, Jules. The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory. Oxford: Oxford University Press, 2001.

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    Coleman here develops his account of inclusive legal positivism. Suitable for scholars and graduate students. See especially chapter 8.

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  • Hart, H. L. A. The Concept of Law. 2d ed. Oxford: Clarendon, 1997.

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    In the postscript to the second edition of this classic in legal philosophy, Hart argues for inclusive positivism (which he calls “soft” positivism) and also reviews related literature.

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  • Kramer, Matthew H. Where Law and Morality Meet. Oxford: Oxford University Press, 2004.

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    Defends inclusive legal positivism against objections, especially those made in Shapiro 2001. Recommended for graduate students and scholars.

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  • Lyons, David. “Moral Aspects of Legal Theory.” In Moral Aspects of Legal Theory: Essays on Law, Justice, and Political Responsibility. Edited by David Lyons, 64–101. Cambridge, UK: Cambridge University Press, 1993.

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    This essay (originally published in 1982) is a wide-ranging analytical discussion of positivism’s separation thesis, arguing that the most plausible version of the claim about the separation of law and morality is itself problematic. Suitable for scholars and graduate students.

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  • Raz, Joseph. “Authority, Law, and Morality.” Monist 68.3 (1985): 295–324.

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    A widely cited and important article, it is considered to be the definitive statement of exclusive positivism. Reprinted in Raz’s Ethics in the Public Domain: Essays in the Morality of Law and Politics (rev. ed. Oxford: Clarendon, 1994).

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  • Shapiro, Scott J. “On Hart’s Way Out.” In Hart’s Postscript: Essays on the Postscript to the Concept of Law. Edited by Jules Coleman, 149–192. New York: Oxford University Press, 2001.

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    Another argument (with Raz 1985) for exclusive positivism. Shapiro argues that the very idea of being “guided by a rule” is incompatible with a rule of recognition incorporating content-based criteria of legal validity. Also offers a clear and succinct summary of what is at issue in the inclusive/exclusive debate.

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  • Soper, E. Philip. “Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute.” Michigan Law Review 75 (1977): 473–519.

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    An early statement of inclusive legal positivism in response to Dworkin’s criticisms. Usefully compared to Coleman 1982 (cited under Dworkin’s Early Criticisms). Reprinted in Ronald Dworkin and Contemporary Jurisprudence, edited by Marshall Cohen (Totowa, NJ: Rowman and Allanheld, 1983).

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  • Waluchow, W. J. Inclusive Legal Positivism. Oxford: Clarendon, 1994.

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    Arguably the clearest and most exhaustive discussion of inclusive positivism and opposing theories. Waluchow considers nearly every argument for positivism stretching back to the 19th century, and there is thorough discussion of (and responses to) Dworkin’s many criticisms of positivism as well as extensive discussion and criticism of Raz’s arguments for exclusive positivism. Suitable for both undergraduates and graduate students.

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Authority

Raz 1985 famously argues that, necessarily, every legal system claims legitimate authority over its putative subjects, that is, the right to give them binding reasons for action; whether or not that claim is justified is a separate question. Raz argues, further, that reflection on the nature of authority itself provides an argument for a form of legal positivism. The influential account of practical authority in Raz 1986 that is presupposed by his account of positivism—commonly referred to as the service conception of authority—has led other positivists, and legal theorists more generally, to consider the nature of practical authority, not only in relation to law but also in its own right. Wolff 1998 is a short but provocative argument that no political authority is, or could be, justified, and it single-handedly set the agenda for thinking about the problem of justifying authority over the last four decades. Wolff argues that the very idea of legitimate authority is incoherent, and that political authorities are by their very nature unjustifiable because they are incompatible with the exercise of individual moral autonomy. Wolff’s argument has proven ultimately unconvincing (see Green 1988 and Shapiro 2002 for thorough criticisms), but this short book has served as a starting point for nearly every discussion of authority since it appeared four decades ago. In particular, overcoming Wolff’s challenge is one of the explicit desiderata of the theory set out in Raz 1986, one of the most sophisticated theories of authority in recent times. Green 1988 provides one of the most comprehensive discussions of practical authority to date (and includes thorough criticism of Wolff’s argument), while Perry 1987 and Green 1988 offer various criticisms of Raz 1986. Raz 2006 attempts to answer some of these objections and offers further important refinements of the service conception. Enoch 2010 argues that whatever the authority (or “normativity”) of law turns out to be, positivism is in a better position to account for it than other competing theories.

  • Enoch, David. “Reason-Giving and the Law.” In Oxford Studies in the Philosophy of Law. Vol. 1. Edited by Leslie Green and Brian Leiter. Oxford: Oxford University Press, 2010.

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    A careful analysis of the claim that law gives reasons for action, showing, contra natural law theorists, that rightly understood, the idea that the law gives reasons for action is best-explained by legal positivism.

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  • Green, Leslie. The Authority of the State. Oxford: Clarendon, 1988.

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    A classic on the subject, Green critically discusses many theories of authority and their historical antecedents, as well as theories from political science and political theory. Green’s own theory broadly follows Raz 1986, but there are also extensive (and widely cited) discussions of the relation of political authority to social conventions, coordination problems, and political and legal obligation. Recommended for undergraduates, graduate students, and scholars.

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  • Himma, Kenneth Einar. “Law’s Claim of Legitimate Authority.” In Hart’s Postscript: Essays on the Postscript to the Concept of Law. Edited by Jules Coleman, 271–310. Oxford: Oxford University Press, 2001.

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    Gives an interpretation of the claim that necessarily law claims legitimate authority (as made in Raz 1985), argues that the claim is false, and tries to show the consequences of this for Raz’s arguments against inclusive positivism. Some acquaintance with the argument in Raz 1985 and Raz 1986 is recommended. Suitable for graduate students and scholars.

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  • Perry, Stephen. “Judicial Obligation, Precedent, and the Common Law.” Oxford Journal of Legal Studies 7 (1987): 215–257.

    DOI: 10.1093/ojls/7.2.215Save Citation »Export Citation »E-mail Citation »

    An engaging discussion and criticism of the theory of authority in Raz 1986 as it may apply in the context of adjudication. Perry argues that in many cases judges consider “binding” precedent only as weighty, but not exclusionary, reasons to decide cases, contra Raz 1985 and Raz 1986.

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  • Raz, Joseph. “Authority, Law, and Morality.” Monist 68.3 (1985): 295–324.

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    Employs the theory of authority set out in Raz 1986 in an argument for exclusive positivism, and is considered one of the most important articles on positivism of the last thirty years. Reprinted in Raz’s Ethics in the Public Domain: Essays in the Morality of Law and Politics (rev. ed., Oxford: Clarendon, 1994).

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  • Raz, Joseph. The Morality of Freedom. Oxford: Clarendon, 1986.

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    Chapters 2 through 4 contain the original presentation of the “service conception” of authority, one of the most developed and sophisticated theories of authority over at least the past half-century. Raz’s theory is embedded in a complex theory of practical reasoning and moral psychology, and it has had a profound impact on scholarly discussions of the topic. This is essential reading on the topic but is demanding reading for undergraduates.

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  • Raz, Joseph. “The Problem of Authority: Revisiting the Service Conception.” Minnesota Law Review 90 (2006): 1003–1044.

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    This should be read as a companion piece to Raz 1986, in which Raz answers various objections raised against his theory of authority over the last twenty years. Most suitable for graduate students and scholars. Reprinted in Raz’s Between Authority and Interpretation (New York: Oxford University Press, 2009).

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  • Shapiro, Scott J. “Authority.” In The Oxford Handbook of Jurisprudence and Philosophy of Law. Edited by Jules Coleman and Scott Shapiro, 382–439. Oxford: Oxford University Press, 2002.

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    A useful but general overview of theories of authority since the appearance of the provocative argument in Wolff 1998, and also surveys many of the objections to the influential account in Raz 1986.

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  • Wolff, Robert Paul. In Defense of Anarchism. Berkeley: University of California Press, 1998.

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    Argues for a strong version of philosophical anarchism according to which the very idea of legitimate authority is incoherent and incompatible with the exercise of individual moral autonomy. Suitable for undergraduates, graduate students, and scholars.

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LAST MODIFIED: 05/10/2010

DOI: 10.1093/OBO/9780195396577-0065

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