Incorporation by law

Legal Theory

Volumn 10, Issue 1, 2004, Pages 1-17

  Raz, Joseph ^a  

^a Och Spine at New York Presbyterian Hospitals   (United Kingdom)

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EID: 57149147326     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S135232520400014X     Document Type: Article

References (13)

1. We lack a general term to refer collectively to all the concepts characteristic of practical thought. These include concepts belonging to virtue and character-related concepts (courage, etc.), responsibility-related concepts (excuses, etc.), value concepts (admirable, etc.), normative concepts (ought, etc.), and reason concepts (rational, etc.). In previous times “descriptive” and “factual” were commonly used to designate those concepts that are not specifically practical. This, however, miscasts descriptions. (“This is John” is not a description of anything yet is supposed to be a descriptive sentence.) Designating nonevaluative propositions “factual” implies that there are no evaluative facts, which is false. I will use “evaluative” and “normative” interchangeably to refer to all of them, as well as using them more narrowly to refer to items of the subcategories indicated above.
2. That the idea is consistent with Hart's account of the law was intimated by him in his review of LON FULLER, THE MORALITY OF LAW in Hart, 78 HARVARD L. REV. 1281 (1965), repr. in H.L.A. HART, ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 361 (1983), and reiterated in the postscript to THE CONCEPT OF LAW 250 (1961), though neither time did Hart stop to explore the meaning and implication of the idea; see David Lyons, Principles, Positivism and Legal Theory, 87 YALE L.J. 415 (1977), at 423-424, and Philip Soper, Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute, 75 MICHIGAN L. REV. 473 (1977). The point was embraced by Jules Coleman, Negative and Positive Positivism, 11 J. LEGAL STUD. 139 (1982), and developed and defended at length by him in JULES COLEMAN, THE PRACTICE OF PRINCIPLE (2001). See, for a general discussion of the view, Kenneth E. Himma, Inclusive Legal Positivism, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW (J. Coleman & S. Shapiro, eds., 2002).
3. Other moral properties, such as generosity and conscientiousness, apply to agents in virtue of their propensity to react to moral reasons or the way they did or failed to do so adequately. Some properties make objects or events morally fortunate or unfortunate, and they may apply to things that are not moral agents, but they too ultimately derive their meaning from their relations to circumstances in which rational agents confront choices.
4. Though of course one is committed to it being truly so from that point of view. Note that the truth conditions of propositions from a point of view (so understood) are not the same as those of the corresponding material implication; for example, “if Christian doctrine is true then….” For one thing, they assert not merely that the from-a-point-of-view proposition is true but that (in this example) it is Christianity that is the ground of its truth. Besides, the falsity of Christianity, far from guaranteeing the truth of the proposition, has no bearing on the question of its truth.
5. G.B. SHAW, PYGMALION, in THE COMPLETE PLAYS OF BERNARD SHAW 729 (1934).
6. This may have been Hart's view in his later work; see H.L.A. HART, ESSAYS ON BENTHAM (1983).
7. The only alternative I can see is to deny that reasons which belong to a point of view have any bearing on what one ought to do, all told. But if so, it is not clear in what sense they are reasons at all.
8. See, e.g., JOSEPH RAZ THE MORALITY OF FREEDOM, chs. 2-4 (1993).
9. Qualifications are in place here for a law may be newly made yet old in content, being a mere restatement of “old” law, and it can, though more rarely than we tend to imagine, merely restate moral precepts as they are without any modification and without any implications (for the process of enforcement and implementation) that modify the application of moral considerations.
10. A very simple illustration (drawn to my attention by T. Endicott) is in practice direction 25.13 of the Civil Procedure Rules (in the U.K.) which says: “The court may make an order for security for costs under rule 25.12 if (a) it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order.” Clearly it might just as well have said “the court may, in its discretion, make an order for security for costs….” In that case, too, the court would have had to do what is just. The language of the rule merely reminds courts that their discretion was not curtailed. It does not “incorporate” anything.
11. Of course, a society or a culture that does not have the concepts of morality and of law does not have a view about their demarcation. Such a society may even be subject to law. The existence of a legal system in any country does not depend on the possession of the concept of law by the population of that country. But it does not follow, of course, that in that country there is no boundary demarcating the limits of law, distinguishing between what is part of it and what is not. The argument in the text applies to it as well.
12. These remarks apply only to what Himma, I rely on the view that the law exists, where it does, as a normative system; that is, that there are no single, stand-alone laws that are not part of a normative system., note 3, calls the sufficiency condition of inclusive legal positivism, that is, to the view that so-called “incorporation” can turn morality into law. I do not, in this article, consider in any way the case for or against the view that the validity of legal norms may depend, whether because some other law so determines or for other reasons, on them being consistent with some nonlegal norms, moral or other.
13. I raised essentially the same question in THE AUTHORITY OF LAW 47, note 8 (1979), though I did so rather briefly and without the supporting arguments above.