Incorporationism and the objectivity of moral norms

Legal Theory

Volumn 5, Issue 4, 1999, Pages 415-434

  Himma, Kenneth Einar ^a  

^a UNIVERSITY OF WASHINGTON   (United States)

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EID: 85022395247     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325299054038     Document Type: Article

References (27)

1. H.L.A. Hart, THE CONCEPT OF LAW 185-86 (2d ed. 1994) [hereinafter CL].
2. As Brian Bix points out, there are two ways in which moral norms might figure into a legal system's criteria of validity: “(1) A rule or standard that would otherwise be part of the legal system would be excluded should it be inconsistent with a moral rule or standard-i.e., consistency with morality is necessary but not sufficient, for membership in the legal system…. (2) A rule or standard could be law simply because it was part of (either critical or conventional) morality-i.e., the moral content of the rule or standard is sufficient to make it a member of the legal system.” Brian Bix, Patrolling the Boundaries: Inclusive Legal Positivism and the Nature of Jurisprudential Debate, 12 CAN. J.L. & JURIS. 17, 21 (1999).
3. Joseph Raz, Authority, Law, and Morality, 68 MONIST 295 (1985).
4. Scott Shapiro, The Difference that Rules Make, in ANALYZING LAW: NEW ESSAYS IN LEGAL THEORY 33 (Brian Bix ed., 1998).
5. Critical legal theorists, however, dispute this claim. See, e.g., Guyora Binder, Critical Legal Studies, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 280 (Dennis Patterson ed., 1996).
6. Matthew H. Kramer, Coming to Grips with the Law: In Defense of Positive Legal Positivism, 5 LEGAL THEORY 171 (1999) [hereinafter CGL].
7. Ronald Dworkin, TAKING RIGHTS SERIOUSLY (1977) [hereinafter TRS].
8. Jules L. Coleman, Incorporationism, Conventionality, and the Practical Difference Thesis, 4 LEGAL THEORY 381 (1998).
9. For this reason, Kramer believes it is necessary to “rectify an unduly sweeping concession made by H.L.A. Hart… that unless a realm of metaphysically independent moral facts exists, the incorporation of moral criteria into a Rule of Recognition will mean that any norms validated by reference to those criteria are not preexisting laws” (CGL, 190-92, emphasis added).
10. Ronald Dworkin, Objectivity and Truth: You'd Better Believe It, 25 PHIL. & PUB. AFF. 87 (1996).
11. Dworkin, Objectivity and Truth: You'd Better Believe It note 12, at 89.
12. Jules Coleman and Brian Leiter describe metaphysical realism as follows: “Metaphysical realism is the view that what there is-the world-is independent of human minds in two senses. First, the existence and character of the world is not simply the extension of human mind…. Secondly, the existence and character of the world does not depend on the evidentiary tools available to us for gaining access to it.” Jules L. Coleman & Brian Leiter, Determinacy, Objectivity, and Authority, in LAW AND INTERPRETATION 203 (Andrei Marmor ed., 1995) [hereinafter DOA].
13. See Michael Dummett, TRUTH AND OTHER ENIGMAS 146 (1978).
14. Geoffrey Sayre-McCord, The Many Moral Realisms, in ESSAYS ON MORAL REALISM 22 (Geoffrey Sayre-McCord ed., 1988) [herein after MMR].
15. C.E. Harris, Jr., APPLYING MORAL THEORIES (3d ed., 1997).
16. Andrei Marmor, An Essay on the Objectivity of Law, in ANALYZING LAW: NEW ESSAYS IN LEGAL THEORY 11 (Brian Bix ed., 1998).
17. Coleman and Leiter side with Marmor on this issue. On their view, conventionalism is a form of minimal objectivity that does not imply realism (DOA, 253).
18. Marmor refers to what Sayre-McCord calls intersubjectivism as a form of conventionalism. See Marmor, Coleman and Leiter side with Marmor on this issue. note 21, at 10-11.
19. See Jules L. Coleman, Negative and Positive Positivism, 11 J. LEGAL STUD. 139 (1982). For an interesting, though sometimes problematic, discussion of the various ways in which the Separability Thesis can be interpreted, see Klaus Füßer, Farewell to ‘Legal Positivism': The Separation Thesis Unravelling, in THE AUTONOMY OF LAW: ESSAYS ON LEGAL POSITIVISM 119 (Robert P. George ed., 1996).
20. This is why Fuller's principles of legality would be inconsistent with the Separability Thesis if the internality of these principles could be explained only by their moral content, eventhough, strictly speaking, the principles of legality are constraints on the existence of legal systems and not constraints on the content of individual laws. See Lon L. Fuller, THEMORALITY OF LAW (1964).
21. Austin expresses this intuition as follows: “Now, to say that human laws which conflict with the Divine Law are not binding, that is to say, are not laws, is to talk sheer nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals.” John Austin, THE PROVINCE OF JURISPRUDENCE DETERMINED 158 (1995). The intuition here is that a system of rules can be a legal system even if those rules do not comport with moral principles.
22. For an opposing view, see Jules L. Coleman, Second Thoughts and Other First Impressions, in ANALYZING LAW: NEW ESSAYS IN LEGAL THEORY, “Now, to say that human laws which conflict with the Divine Law are not binding, that is to say, are not laws, is to talk sheer nonsense. note 21, at 264-66.
23. Joseph Raz, THE AUTHORITY OF LAW 46 (1979). Hereinafter referred to as AL. Raz believes the Source Thesis is implied by the view, which he takes to be conceptually true, that law claims legitimate authority. See Raz, For an opposing view note 3.
24. See Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, 4 LEGAL THEORY 253 (1998).
25. Philip Soper, Two Puzzles from the Postscript, 4 LEGAL THEORY 359, 369-70 (1998) [hereinafter TP].
26. Brian Leiter, Legal Indeterminacy, 1 LEGAL THEORY 487 (1995).
27. The same is true of Dworkin's view of judicial lawmaking. While Dworkin acknowledges the existence of difficult cases that do not fall clearly under a rule, he believes they are not resolved by an exercise of judicial discretion. On Dworkin's view, there is always a right answer to such cases implicit in the preexisting law. Of course, it sometimes takes a judge of Herculean intellectual ability to discern what the right answer is, but it is always there to be found in preexisting law. Since the right answer to even hard legal disputes is always part of preexisting law, Dworkin believes that a judge can take property from a defendant in a hard case without unfairness (TRS, 87-130).