Farewell to the exclusive-inclusive debate

Oxford Journal of Legal Studies

Volumn 25, Issue 4, 2005, Pages 675-696

  Priel, Danny ^a  

^a YALE UNIVERSITY   (United States)

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EID: 31144437063     PISSN: 01436503     EISSN: None     Source Type: Journal    
DOI: 10.1093/ojls/gqi033     Document Type: Article

References (52)

1. Responses to Dworkin along those lines were made in three articles, before the inclusive-exclusive debate was launched. See E. Philip Soper, 'Legal Theory and the Obligation of the Judge: The Hart/Dworkin Dispute', 75 Michigan Law Review 473 at 511 (1977);
2. David Lyons, 'Principles, Positivism, and Legal Theory', 87 Yale, Law Journal 415 at 424 (1977);
3. Jules L. Coleman, 'Negative and Positive Positivism' (1982) 11 Journal of Legal Studies 139.
4. The principal writings on the exclusive side are Joseph Raz, 'Legal Positivism and the Sources of Law' in The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979) 37
5. 'Authority, Law, and Morality' in Ethics in the Public Domain: Essays in the Morality of Law and Politics (rev. edn, 1994) 195 (the article will be referred to hereafter as Raz, 'Authority', the book hereafter Ethics).
6. More recently there has been one more article defending ELP: Scott J. Shapiro, 'On Hart's Way Out' in Jules Coleman (ed.), Hart's Postscript: Essays on the Postscript to the Concept of Law (2001) 149 (hereafter Hart's Postscript). The argument in the latter article is somewhat fuzzy, but as I will argue below it is essentially the same as the one made by Raz.
7. For other supporters of ELP see Brian Leiter, 'Legal Realism, Hard Positivism, and the Limits of Conceptual Analysis' in Hart's Postscript at 355
8. Eleni Mitrophanous, 'Soft Positivism' (1997) 17 OJLS 621.
9. For an overview of the exclusive position see Andrei Marmot, 'Exclusive Legal Positivism' in Jules Coleman & Scott Shapiro (eds), Oxford Handbook of Jurisprudence and Philosophy of Law (2001) 104 (hereafter Oxford Handbook). Since the volume of writings on the inclusive side is larger what follows is only a partial list: A few sentences in the first edition of The Concept of Law (2nd edn, 1994) suggest that Hart accepted the inclusive position already then.
10. See ibid. at 204.
11. He explicitly endorses this position in the Postscript, ibid. at 250-54.
12. The first defences of ILP are the articles cited in n 1. Since then inclusive positivism was defended, among others, in the following: W. J. Waluchow, Inclusive Legal Positivism (1994);
13. Matthew H. Kramer, In Defense of Legal Positivism: Law Without Trimmings (1999) at 197-9
14. Jules L. Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Law (2001) at 67-148
15. Kenneth Einar Himma, 'Law's Claim of Legitimate Authority' in Hart's Postscript at 270.
16. Shapiro's article has garnered three responses: Kenneth Einar Himma, 'H. L. A. Hart and the Practical Difference Thesis' (2000) 6 Legal Theory 1
17. W. J. Waluchow, 'Authority and the Practical Difference Thesis: A Defense of Inclusive Legal Positivism' (2000) 6 Legal Theory 45
18. Matthew H. Kramer, 'How Moral Principles Enter into the Law' (2000) 6 Legal Theory 83.
19. Shapiro responded in 'Law, Morality, and the Guidance of Conduct' (2000) 6 Legal Theory 127.
20. Kramer then rejoined in 'Throwing Light on the Role of Moral Principles in the Law: Further Thoughts' (2002) 8 Legal Theory 115.
21. For an overview on various inclusive arguments see Kenneth Einar Himma, 'Inclusive Legal Positivism' in Oxford Handbook at 125.
22. There is one potential practical difference between the two positions: an inclusive positivist who also holds the view that judges are not allowed to rely on moral considerations relevant to the decision when these moral considerations are not explicitly mentioned in the law would differ from an exclusive positivist. Raz on the exclusive side argues that this position is untenable. See his 'Incorporation by Law' (2004) 10 Legal 77teorv at 2-7. If there is such an inclusive positivist, a matter about which I am not certain, there may be a difference between what an exclusive positivist like Raz and such an inclusive positivist would consider is the correct outcome according to law of certain cases.
23. Shapiro, above n 2 at 177-78.
24. Ibid. at 178 n 57.
25. Joseph Raz, 'The Problem about the Nature of Law' in Ethics, above n 2 at 205.
26. See also ibid. at 206-08
27. and Raz, 'Authority', above n 2 at 218-19.
28. Joseph Raz, The Morality of Freedom (1986) at 53. A similar definition (although slightly differently worded) appears in Raz, 'Authority' above n 2 at 214.
29. Stephen R. Perry, 'The Varieties of Legal Positivism' (1996) 9 Canadian Journal of Law & Jurisprudence 361 at 366-67.
30. Waluchow, Inclusive Legal Positivism, above n 2 at 158-59, states this strongly: 'the exclusive account is simply counter-intuitive. It seems quite at odds with our ordinary understanding of a constitutional document like the Canadian Charter'.
31. See, e.g. Michael S. Moore, 'Authority, Law, and Razian Reasons', 62 Southern California Law Review 827 (1989).
32. See also Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (1991) 88-93, 196-206. Recently, in the course of criticizing Coleman's version of ILP, Ronald Dworkin subjected Raz's ELP to a comprehensive critique.
33. See Ronald Dworkin, 'Thirty Years On', 115 Harvard Law Review 1655 at 1665-76 (2002). However, it must be noted that Dworkin manages his criticism only by distorting Raz's views almost beyond recognition.
34. See Kramer, above n 2 at 92-101, 219-21. The argument against ELP that follows in the text does not appear in exactly this form in Kramer's discussion.
35. For an earlier - and to some extent similar - critique of Raz see Philip Soper, 'Legal Theory and the Claim to Authority' (1989) 18 Philosophy & Public Affairs 209 especially at 224-36.
36. E.g. Coleman, above n 2 at 127-33.
37. A note on typography: I will refer to words by putting them in quotes ('equality'), moral concepts appear in bold (equality) and to legal concepts in italics (equality). Thus the denotation of the word 'equality' in English is ambiguous between equality and equality. The French word 'egalité' is likewise ambiguous between equality and equality. To avoid confusion I will add that my typographical conventions are not the ones found in recent writings on concepts. There the distinction is between concepts (designated by capitals, eg. DOG) and the property they stand for (in italics, e.g. dogness).
38. See, e.g. Jerry A. Fodor, Concepts: Where Cognitive Science Went Wrong (1998) xii.
39. Joseph Raz, 'Dworkin: A New Link in the Chain', 74 California Law Review 1103 at 1110 (1986) (footnote omitted, emphasis added). To the same effect see Raz, 'Authority' above n 2 at 232.
40. Some naturalistically-inclined philosophers may consider this an overly old-fashioned characterization of philosophy, but modest conceptual analysis is something that all philosophers constantly engage in, and it plays an important role in understanding the world. For an argument to the effect that there is nothing in conceptual analysis that conflicts with a strong naturalistic thesis (physicalism), and that it is actually required for arguing for that thesis see Frank Jackson, From Metaphysics to Ethics: A Defence of Conceptual Analysis (1998) chs 2-3. There is also nothing in this view, which is incompatible with keeping the theoretical understanding of concepts (to some extent) in line with lay understanding of social phenomena.
41. This is a matter of some controversy; William E. Nelson, The Fourteenth Amendment: From Political Doctrine to Judicial Principle (1988) at 133-36, treads carefully but admits that '[h]istorians who conclude that most Americans in 1866 favored segregated schools are probably correct in their assessment'.
42. Ibid. at 135. For a survey of contemporaneous judicial opinions on this matter, the vast majority of which saw no conflict between the Fourteenth Amendment and segregated schools,
43. see ibid. at 151-52.
44. There are many arguments aimed to show that any search for original intention is impossible. For a representative summary of such arguments see Ronald Dworkin, Law's Empire (1986) at313-27. A modest intentionalistic position could grant that the intentions of drafters are many times inconclusive (or non-existent) about specific problems. This does not mean that we cannot sometimes discern the purpose of a certain enactment, and this may be helpful in determining the scope of specific norms. And the ascription of intentions to multi-person projects may not be as hopeless as it has been made to look.
45. See, e.g. Michael E. Bratman, 'Shared Intention' (1993) 104 Ethics 97
46. J. David Velleman, 'How to Share an Intention' (1997) 57 Philosophy & Phenomenological Research 29.
47. That is Raz's view. See Joseph Raz, Practical Reason and Norms (2nd edn, 1990) at 159-60 (arguing that even a society of angels would require a legal system).
48. fuller treatment of the relationship between co-ordination and authority is found in Joseph Raz 'Facing Up: A Reply', 62 Southern California Law Review 1153 at 1187-94 (1989).
49. I owe this objection to Larry Solum. The distinction between thick and thin moral concepts comes from Bernard Williams, Ethics and the Limits of Philosophy (1985) at 129-30, 140-45.
50. Ibid. at 144.
51. See also ibid. at 147.
52. Dworkin, above n 17 at 225.