The Architecture of Jurisprudence: Part I

gratitude to the organizers of this really splendid conference and particularly for jordy for the privilege and the honor that they gave me in bringing me here to share this special set this session and especially for the privilege of chairing this particular session with Jules Coleman’s presentation there are two unwritten rules regarding the chair in an academic conference the first rule requires that the chair or the speaker the chairperson say that the speaker already has a worldwide reputation and a well deserved one so that he and his achievements need no introduction the second rule requires that the chairperson nevertheless proceeds to give an introduction obviously although this is not quite a logical contradiction it is not easy to respect both these unwritten rules but I will do my best to apply them and therefore I will make an introduction but a brief one that will be a simple reminder of what all of you know perfectly well Jules Coleman was trained in both philosophy and long and he is a professor in both the law school and the philosophy department at Yale University with the title Wesley Newcomb hökfelt professor of jurisprudence and professor of philosophy indeed he teaches philosophy philosophy of law ethics but also more serious subjects which is stored and he writes in all fields including more serious ones like rock and roll on all these subjects there are a very large number of books and articles legal philosophy towards constitutional law and I can quote only a few that most people are familiar with rights and wrongs markets morals and the law the Oxford Handbook of jurisprudence and philosophy of law together with scotch appear Oh who’s here the practice of principle this latter book has been described as I quote perhaps the most developed statement of inclusive legal positivism indeed prophecy professor Coleman is generally recognized as one of the main exponents of this important development in legal theory among the marks of recognition that he received is an invitation to give the Clarendon lectures in law at Oxford and two years ago an important conference was organised at the University of Bologna on his work i’m very impatient as you are all to listen to Professor Jules Goldman and I give him the floor immediately professor Coleman it’s ok it’s a great pleasure to be here I want to thank the organizers for inviting me and for holding this wonderful conference and I hope that I can make a valuable contribution to it and that my contribution will actually be in virtue of what I say today I’m among the things that I’m going to argue for today is the unfortunately that inclusive legal positivism is not an interesting subject having made my reputation on it I feel it’s now appropriate to leave it actually I’m not going to read my paper but I’m hopefully this will make it easier to follow I’m going to speak in this way and explore some central ideas that I think

influence jurisprudence so mostly what I’m interested in doing is the following I’m interested in reconceptualizing and rethinking the fundamental projects of jurisprudence and moving us away from a focus which we’ve had for a very long time on certain debates which I find misleading and unhelpful and moving us into exploring fundamental issues and reformulating some of the problems that we focused on for long periods of time in somewhat different ways which I hope are more precise and clear and i hope the ways in which i formulate them will enable us to make progress on their resolution so I have three projects that are connected the first is to raise some doubts about and more than that to undermine and dismantle some of the conventional wisdom of contemporary jurisprudence that will be mostly what I focus on today i will discuss two of the nuggets of the conventional wisdom one is the separable atithi sis and the second is the distinction between descriptive and normative jurisprudence and the relationship to positivism on the one hand and non positivistic jurisprudence on the other hand the second thing that I will do not today and not in detail if I mention it briefly today it will be to articulate a general structure of jurisprudence that distinguishes among this variety of different kinds of questions questions about the content of law Shammah which I think of as the metaphysical question about the nature of law legal facts are themselves not basic facts they are facts and virtue of other facts that determine them and the question is one of the determinants of legal content I take that to be the metaphysical question the semantic question a question about how we are to understand or interpret judgments of law the medical question that is if we interpret them to be judgments about what we ought to do how we understand judgments about what we ought to do the epistemic questions which include questions about the nature of inference and justification and law and finally normative questions questions about the relationship of law to reason and the third project which I will focus on to some extent today our questions about laws what I call laws place whether we fundamentally see law as continuous with other aspects of our social life and social practices or whether we focus primarily on law and think of it as continuous with morality and I will clarify that but I want to begin my comments by saying something about two nuggets conventional wisdom and jurisprudence the first being the separable atithi s’sinn the second the methodological distinction between so-called descriptive and normative jurisprudence i will say very little about the separable atithi sasan considerably more about the meth illogical debate because it figures more prominently in my discussion in the third part of the project now the separable atithi sis can be understood in a variety of different ways leslie green in a recent paper claimed that Hart held the broadest interpretation of it that there was in fact no necessary connections between lon morality and that in fact such a view was false it’s also true however that even if Hart did hold this promiscuous interpretation of the separable atithi cecee also held a narrow one which was his focus which had something to do with the conditions as it’s been currently interpreted conditions of legal validity that morality was not a condition of legal validity and so this was sometimes phrase is the view that whether or not something is the law is one thing and

whether it has moral merit or not is another and this was thought to be interpreted which is in fact not a good interpretation but it’s nevertheless thought to be plausibly interpreted as a claim that morality is not a necessary condition of legal validity and this is thought to be the paradigmatic of legal positivism now the things I want to say about the separable atithi sis are as follows so we can understand it in either of two what we can probably understand it in a million ways we certainly can understand it as a claim about legal validity and we can also understand it as a claim about the existence condition of legal systems as a claim of a legal validity it is a claim that positivists endorse but we should not ascribe it to natural lawyers as a claim about the existence conditions of legal systems it’s a claim that is endorsed by rejected by natural lawyers but we should not suppose that legal positivists endorse it and so the conclusion of the argument in this section will be that the separable atithi sis is distracting from more fundamental questions in jurisprudence and in fact to legal positivists who I know reasonably well one I know better than the other that’s Joseph rouse the other is me but I don’t know that well both reject the separable atithi sis so it would be one would be hard-pressed to advance the view that the separable atithi sis is the central distinguishing feature of legal positivism so let me make this argument rather briefly since I’m not particularly interested in and I’ve made versions of this argument before roughly the thought is that if it’s true that a law can be valid in spite of it being immoral or bad then if the separable atithi supposed to distinguish legal positives from natural lawyers then one would suppose that natural lawyers are committed to the idea that bad laws or immoral laws are conceptually impossible that seems to be or involve some notion of some kind of contradiction that seems to be a view that we don’t want to impose upon natural lawyers so when a natural lawyer says a bad law is no law and all at all we should be understanding them to be making a different kind of claim than the one that they appear to be making so we should understand them for example as to be making a claim as to how one should proceed in thinking about jurisprudence that is as making a methodological claim and among the candidates methodological claims that we should understand them to be making is the following that one should proceed in jurisprudence by looking at the successful cases and not of the failed cases the successful cases of law are ones in which law binds the conscience or in which law succeeds at what it aspires to do and what it aspires to do on this view is to impose obligations so when we proceed in jurisprudence we should be studying law which succeeds at its aspiration which is to impose obligations and that law in the full senses law that is successful and we should proceed in jurisprudence by focusing on the successful case of Glaucus is a methodological claim and so in some sense whether or not it’s a plausible claim is a different question but it’s no longer an obvious claim that a positivist has to disagree with that is it’s not it’s not the difference is not captured by the separable atithi TSA’s it’s captured by a different way of thinking about how we should approach jurisprudence alright and I have a good deal more to say about this in the paper that I don’t want to repeat because I want to say I’m assuming that you would have read the pay for you will read the paper and i want to say things that are novel and distinctive and worthy of more

discussion than then in my mind this is the the second thing is sometimes the separable atithi cec’s taken to be a claim about legal systems and not about the conditions of legal validity and here the thought is that a certain kind of legal system in a foremost law is a scheme or form of governance and the idea is that nothing can count as a legal system a distinctive form of governance unless it satisfies certain kinds of moral ideals or unless it embodies or expressed as certain kinds of moral values and that therefore or meet certain kinds of moral constraints and therefore some things which count as legal systems in the positivist picture would not in the natural lawyers picture so that positivism is understood as a view about the existence conditions of legal systems such that there are no moral constraints on them or that it’s not a necessary condition for the existence of legal system that it satisfy or embody or express certain kinds of moral ideals and that natural law theory holds that that’s not the case and that that’s what separates natural law theory from legal positivism but again this seems to me to be artificial and not helpful since there’s nuts have wanted to insist on is the possibility of eagle evil legal systems and evil legal systems are possible even if it’s true that everything that counts as a legal system embodies certain kinds of moral constraints or expressive certain kinds of moral values and we could think of a couple of them for example you might think that nothing is a legal system unless it treats people as agents that is responsive to reason and think that individuals who are responsive to reason our respective a certain kind of way that that involves a certain kind of value and not merely it’s not merely just the fact it’s a way of thinking of or conceiving of people that’s value bullen desirable and that nothing could count as a legal system which failed to treat people as responsive to reason in a certain kind of way as some reason on earth why a positivist would have to deny that indeed a positivist can accept a considerably more by way of constraints moral but broadly speaking moral or value of constraints on the existence of legal systems so I don’t think anybody wants to deny that bad laws can be laws and no one wants to deny that there can be moral constraints on the existence of legal systems in addition if one just looks at the literature of the vast majority of positivist many of us are committed to the idea that there are fundamental moral concepts which are central to our understanding of law r as for example claims that law necessarily claims to be legitimate authority and by legitimate authority certainly has in mind that the reasons that the law purports to provide our moral reasons legitimate moral reasons so to understand law is to understand its connection to morality in a certain kind of way in his recent book Scott Shapiro claims that what distinguishes law from other systems of planning is that it necessarily seeks to resolve a certain category of moral problems so that the very idea of law presupposes a connection to morality heart of course claim that there was a minimal moral content to law and so on so I don’t really think there’s much to be gained by focusing on anything that looks like or smells like or sounds like the separable atif esis and that the separable atithi sistema misleading from more fundamental questions and jurisprudence and we would do well to leave it behind the next distinction that is central to conventional wisdom is that legal positivists are by and large descriptive jurisprudence and non-legal positivists in particular natural lawyers of one sort or another methodologically speaking are normative jurisprudence now of course I’m I am ignoring a certain kind of debate or a certain set of positions of so-called normative positivists who think that positivism could be defended on normative grounds or people who think that like Leah

Murphy and others that the concept of law is not something that we can identify at all because of the nature of deep disagreement about it or some idea of that sort and that the only project we have are broadly speaking engineering projects I’m actually just focusing on people who think that we can uncover the nature or essence of law but the project of doing so can be approached in either of two ways only and so I’m interested in that group of philosophers who would include raz on the one hand and two working on the other hand and hard on one hand myself who think that we can in fact identify the content of the concept of law or explore the nature of the essence of law but that there are distinctive philosophical tools which are appropriate for doing so and among this group it’s largely thought that positivists are those who are committed to the idea that the way to do this is broadly speaking through something or other that’s descriptive or conceptual and that normative people who think that the content of law includes normative or moral facts are committed to the idea that the project of jurisprudence is normative and can only be pursued by seeing it as falling out of first political philosophy right so those who believe that the content of law is fixed by social facts alone or that only social facts can fix the determinants of legal content which is what i think is distinctive of BISM are thought to believe that the content of the concept is revealed to us through some form or other of conceptual analysis whereas those like Dworkin who believe that the content of law is fixed by normative as well as by social facts are committed to normative jurisprudence that is they believe that analysis of the concept of law can proceed only by addressing problems in first order political philosophy now it’s an important point in my mind to see that this is not just misleading but seriously mistaken and uncovering the ways in which it’s mistaken will allow us to see deep and fundamental points about jurisprudence so my own view is in ridding ourselves of focusing on the separable atithi sis we just clear the deck to approach problems in a different way that are more promising but in ridding ourselves of this view that that attributes’ to positivists a kind of descriptive jurisprudence and to non positivists a normative jurisprudence we don’t merely clear the deck we actually gain a deep insight into the fundamental issues of jurisprudence and that is what I want to focus on now so the way to do this seems to me is to take the leading by my lights leading legal positivist of our time joseph raz and i hesitate to call him a natural lawyer but the leading and i hesitate to call him leading in this august audience but one of the leading non-legal positives Ronald Dworkin and show that at some fundamental and deep way or one is paradigmatic of positivism and the other is paradigmatic of non positivism they are much much more alike in fundamental and important ways than one would think and seeing the ways in which they’re alike will deepen our understanding of what is distinctive of variety of different kinds of jurisprudential views so let’s start with dwarkin because most of my focus will be on Braz Dworkin thinks that the fundamental question in political or one of the fundamental questions in political philosophy is what justifies

the use of collective force against persons or we might think of this is what justifies political coercion or when can the use of force by all against some be justified you might think that one answer to this question is when justice requires it but of course it turns out to be an only one justice requires it but of course it turns out to be the case that there are all sorts of injustice a–‘s that we might impose upon one another which don’t warrant or call for the collective use of force of anyone against anyone else and there are also cases in which the collective use of force is justified for reasons other than to see to it that justice is done but deeper point that work and makes is that to understand law is to understand it as necessarily a putative answer to this question that law is to be understood as an answer to the question what is the collective use of force justified and the law purports to be an answer in the sense that whenever it’s required by law right so to understand what law is is to understand it in terms of it being a potential answer to a question in political philosophy and so one cannot understand or approach jurisprudence other than seeing it in terms of this first order this question of first order political philosophy so the methodology of jurisprudence then lead to uncover the nature of law is itself an activity of first order of political philosophy and that’s the argument structure of the argument for why in his case jurisprudence calls for a normative methodology one cannot approach the question about the nature of the essence of law other than through the question of political philosophy what justifies coercion now it turns out of course interestingly that for as one approaches the question about what the nature of the essence of law is in virtue of a fundamental question in political philosophy as well namely what is the nature of legitimate authority because after all those you who recall its razzes view that law claims to be a legitimate authority and it’s this fact of a law that imposes constraints on the kind of thing that law can be so the way we come to approach or understand the nature of the content of the concept of law is by seeing it in the light of its relationship to this fundamental question in first order political morality namely what is the nature of legitimate authority and it’s once we understand the nature of legitimate authority that we will come to understand the constraints that laws claiming to be necessarily a legitimate authority imposes on the kind of thing that law is so we approach the concept of law through first order political morality all right so what the first point to make is that it’s just simply a mistake to think that positivism travels with broadly speaking conceptual analysis whereas non pas service positions travel with approaching law through first order political morality that’s not the deepest point but that’s the first point the deeper point the next deepest point seems to me to be the following if we focus on Raz for a second and focus especially on his rejection of inclusive legal positivism um people have tended to let me put it another way there are two different kinds of objections which Raz and Rossi

ins but more resilience than Raz have offered to inclusive legal positivism right one is that it’s incompatible with laws claim to legitimate authority and high and other people have responded to this objection I think convinced we and I don’t want to repeat it because that’s not the deep objection the deep objection seems to me much more powerful and much harder to respond to and in fact when you understand it you’ll if you like me you will lose the you’ll lose your conviction that it’s worth responding to because there’s something much deeper at stake than the debate between inclusive and exclusive legal positivists and that objection goes something like this morality always applies to everybody so the question under what conditions can the law incorporate morality is misguided rather if we understand ourselves as agents under the law we are in the first instance always required to do what morality requires of us to do what the balance of reasons requires us to do and so the thought that the law can incorporate morality is misguided the right way to think about it is something like the following there’s always morality and our burden our responsibility as agents is to always act on what it is the balance of more reasons requires of us the question is when can we act on reasons other than the reasons that morality requires of us the answer to which is when morality so directs us when does morality so direct us to act on reasons other than the reasons them rally when we will do better acting on those other reasons in doing what morality requires of us then we will in acting on our own assessment of what those reasons require of us when is that’s when is that the case the law claims that’s always the case with regard to the law that is law is carved out of morality morality that is law counsels appealing to something other than I’m sorry morality counsels appealing to something other than morality directly namely law when it’s the case that acting on legal reasons or legal directives means that you are more likely to do what morality requires of you then you would successfully than you would by acting on your own assessment of the balance of moral reasons right so law is carved out of morality by morality through the authority relationship when it’s true that you will do better acting on the basis of the reasons that the law provides then you will acting on your own assessment of morality then and only then is it right for you to act on the basis of those reasons so the thought that law can incorporate morality is backwards the question is when does morality incorporate law that is or another way to put it is when does law the windows morality direct us to act on the basis of something other than morality in this case law so the picture that has at the heart of inclusive legal positivist versus exclusive legal positivist picture is completely mistaken because the picture in that debate is there’s law and there’s morality as come as different but in some sense on the same level equal normative systems and the question is when can one in the kale oo incorporate the other and under what conditions can it do so and of course the debate between inclusive and exclusive legal positives was inclusive legal positive thought that of course there were conditions under which you could right and the exclusive legal positive thought there never conditions under which you could because it would doing so violate laws claims legitimate authority or something along these lines but in fact that is just the wrong way

to see the issue rather if razzes right there is always morality and law is carved out from it law is continuous with morality it’s not an alternative normative system we only understand it in its relationship to morality and that the key concept central to our understanding it is that of authority and in particular the service conception of authority that he offers alright so the inclusive exclusive debate is taking place at the wrong level it’s not understanding the deep connection within the Razzie and picture of the relationship of law to morality alright first point the next point is for people who are interested in positivism and raz and not in things like the separable atithi sisting by comparison to this is the following positivism for as is not where he begins it’s where he ends it’s not the point of departure of his thesis it’s the conclusion of the thesis why because if morality carves out law under certain sets of conditions it’s his view that in order for it to operate successfully in that way law must be the sort of thing whose content and identity is determined only by social facts facts about behavior and attitude and not by appealing to moral considerations so in other words the theory of authority as central to understanding the relationship between law as being carved out for morality is the idea that there is a firewall between law and morality such that the content of law can only be fixed by facts about behavior and attitudes and not by moral facts in order for law to be the sort of thing that morality councils that you appeal to in order to act in ways that meet the demands of morality there must be this firewall now you can reject that position that’s a different issue but the positivism is the last claim namely that the content of law is fixed by social facts alone that is not the point of departure ferraz that’s the conclusion of this entire picture now finally I’m not done I mean I could go on for days and in fact I might I’m one of these people who enjoys being on a roll and once I get on a roll I don’t want to hear any questions and I don’t want to be disturbed and so on and I don’t care if you fall asleep the the dwarkin picture right now remember we have twerking and razz are both committed to thinking that you can’t get at law other than through first sort of political philosophy but Ford workin you see the fundamental relationship is coercion not authority the fundamental question in political philosophy is not the question of what constitutes legitimate Authority he doesn’t have morality being carved out I’m sorry law being carved out of morality by morality he he sees the fundamental question is the question of political coercion to which laws an answer necessarily and on his view so law makes a difference in what politically states are justified in doing that is when it’s the law states are justified in acting in certain kinds of ways namely imposing coercion on individuals all right so it’s not like law is carved out of morality that is law the relationship between law and

morality fridge workin is that law impacts political morality in certain kinds of ways by licensing certain kinds of actions now in order for law to relate to morality in this way Ford workin the law itself has to be transparent or translucent to morality and of course it’s unsurprising therefore that one gets to work in ian’s interpretive ISM that is what the law is is a set of principles of political morality which provide the best explanation and fit of it in the light of what would justify the use of course of force so it turns out not only that the claim that positivists and natural lawyers are must adopt different methodological stances is mistaken but when we see the ways in which it’s mistaken in this particular case we see not only that one can approach the content of the concept of law as a problem in political morality but we see a deeper point and that is a kind of continuity between law and morality both within distinctive positivist positions and non positivist positions so the thought that we should approach jurisprudence by asking whether morality and law are separate or connected in a certain way is not helpful not helpful at all we will be misled the deeper point is to explore the ways in which they are thought to be connected in certain views positivist or not positivist and by focusing on things like the separable atithi says we will just be distracted and we will not see the deeper issues now one of the things which falls out of this view is not just that the separable atithi CEC’s misleading distracting and uninterested but also that the dispute between inclusive and exclusive legal positivist is at a level it’s perfectly legitimate dispute but it’s at a level of understanding that if we focus on it too narrowly and carefully we will miss the deeper and larger issues in which it turns out not to be that interesting a dispute in which it seems even to be a poorly formulated dispute a dispute about whether law can incorporate morality because that involves a picture of the way law and morality are related to one another which may not be correct as to as it were equal normative systems right now the final implication of this is what I would like to speak to about for a couple of minutes and that is why have the issues in jurisprudence lasted forever it’s not just because we would get out of business and we’d have nothing to do and it’s not just because there’s a lot of bad philosophy involved in what people do and and it’s not just because people have focused on the wrong questions there are some deep and abiding differences that are hard to resolve if one of the deep and abiding differences is the one I’d like to point your attention to and that is whether or not what I call it I call it in general laws place and that is whether you want to see law has fundamentally continuous with other aspects of our social life right that law is above all else a large scale social organization a way of organizing ourselves collectively in order to regulate our affairs with one another now we do that on a small scale as well we do that on our own scale by forming future-oriented intentions we organize our life in this way we regulate our response a certain phenomena in the world we make

plans react with other people we form groups associations corporations and law and there’s a sense in which there’s a continuity between those and we might ask ourselves what is the structure or the fundamental normative features of this form of social organization and therefore what sort of normativity is fundamental to it and we can approach law through what I would think of is of its fundamental associate sociality and and one could approach jurisprudence this way understand the nature of law by seeing its continuity with other aspects of our social life and I would think that someone like me is someone who adopts this approach and I think heart is someone who adopts this approach and I know that Scotch apuro someone adopted to see the continuity between social rules our hearts a good example right in this regard but the alternative view is to see law as continuous with morality in a variety of different ways either as what difference does it make in moral space what difference does law make how does law affect what morally we ought to do all right and of course after all among if raz and others are right that among the things that law claims is that it makes a certain kind of difference in moral space right now people who focus on this it doesn’t matter whether you’re a pop my whole point is it doesn’t mean a positivist or non positivist you can still be driven to the idea that the right way to understand law is by seeing it is continuous with morality in a certain way and that’s clear as as well as to working as well as many natural lawyers now this difference is significant because people who focus on the continuity of law with morality when they explore the sociality of law they’re only interested in those aspects of the social world and our social life together the sociology of all that’s necessary to support their claims about the relationship of Lord of morality right so twerking is very thin on social dimensions of law institutional dimensions of law but so is Raz Raz is very thin on the social dimensions of law others like if you start in the other extreme with heart very thick on the social dimensions of law very puzzling claims about the way in which law connects with our moral life very unsatisfying for a lot of people right now I’m not going to resolve this dispute now I need to have a career for myself in what follows you know beyond today right but what what I want to say is this is an enduring problem because it’s perfectly plausible to approach law in either of these ways to fundamentally ask what difference does in making its moral life and what social nature do we have to ascribe to it in order for us to offer a plausible explanation of its capacity to make the difference that it makes but it’s also plausible to understand law fundamentally from the point of view of how it’s connected to and continuous with other aspects of our social life it seems to me however that we will never approach these questions in a useful and meaningful way if we continue to allow ourselves to be prisoners of the conventional wisdom that has informed our field but has also paralyzed it thank you well this idea that morality always applies and Louis carved out by morality well it seems to me that if you want to explain what a legal obligation is with this theory you have a serious problem because it won’t work for the bad man it doesn’t explain what a legal obligation

is from the bad man’s point of view and it seems to me that a theory what about what a legal obligation is needs to explain that it’s not enough that it explains what more of a morally motivated person might have for reason for for following the low and so forth and I don’t know what that makes me maybe that makes me illegal realist someone would say I always thought it made me a legal positivists what do you say well I don’t care um I don’t care what it makes you I mean you must care about this and if I started caring too much about what it made you I’d see a therapist but but I think look I’m trying to explain the Razzie and picture and I so so let me just say my order of business here was to explain how one can be a positivist and approach the problem and user as an example now but I can’t answer your question in the quite apart from my discussion which was a discussion of ravs and that is I think it’s a good question in general to ask what content were to give to the idea of legal obligation beyond the very idea that it’s an obligation which is imposed by law right so well so I here’s a way the way the way I think about it it’s a statement that you ought to do X by the law right or even that you’re obligated to do X by the law now I think the question is a semantic question how are we to understand that assertion now on some views we are to understand that assertion as a claim that’s merely a prediction about what will happen to you if you act in a certain kind of way right on other views we can understand it as expressing the idea that you have a distinctive kind of obligation that is sooo a generous or in some other way it’s a legal obligation and then the burden would be on you to explain what you mean by a legal obligation beyond the obvious point that it’s an obligation which is conferred by a legal rule right or you can adopt a view which is a view that Raz adopts in which I adopt and I think other people adopt that that assertion should be understood the semantics of that assertion it should be understood as a claim about what from the moral point of view from the legal point of view you have more reason to do so it’s a claim a legal claims of legal obligations not legal obligations because legal obligations are things I’m talking about the assertion that you have a that it is the law that you ought to do Phi I understand that as a statement that from the legal from the laws point of view you have a moral compelling more reason to Phi now the that’s perfectly understandable to the bad man right the bad man can say I so understood from the laws point of view I have more reason to Phi that’s not from my point of view I have more reason to Phi I have or I may have no more reason to fire I don’t care if I have more reason why I don’t care what the law things what I do worry about the law is that they think in virtue of the fact that from their point of view I have more reason to Phi that if I fail to Phi then I am subject to the following sanction so I don’t see that there’s a problem at all here that is there’s an assertion the question is what’s the semantics of the assertion can bad men understand the semantics of the assertion yes of course the semantics of the assertion I’m a sir is that from the laws point of view I have more reason to Phi and the bad man can understand that as a claim that he or she takes to be false but can nevertheless you don’t have to introduce the idea that he’s got a legal obligation that doesn’t help rather what helps is the idea that that the bad man thinks that the claim being asserted by the law is false but I have good reason to act on it for other kinds I’m well motivated to act on it for other kinds of reasons namely that because the law thinks I have more reason it’s going to think that they’re justified in punishing me when I failed to Phi and I have to respond to that fact so now we have a problem because there are 36 people who have asked who wants to ask questions that’s not a problem unless I’m expected there so it’s I think it’s wise not to take any more so there’s this gentleman who raised his hand first

here you and I can’t see yes and then after that Robert Alexei and Regan yes it needs a microphone he needs a Niekro phone I need an argument I’m a fabulous Shakira from McMaster University Canada I there’s one step in your argument that isn’t very clear to me and this is the step in which you try to show that rise in trying to explain the nature of law engages in first-order political questions and i’m not sure what it seems to me that he’s doing is analyzing given an analysis of the concept of legitimate authority and i’m not sure to do that is to engage in first-order questions rather if someone writes a work on on the concept of morality i would probably classify that work as a work in meta ethics not worked in a normative ethics so even if another elsewhere in his work raz engages in first-order questions doesn’t need to do that when analyzing the concept of legitimate authority in order to lose state the nature of law well he’s offering the substantive theory of political authority and I mean I have a lot more to say about that I I’m not going to reject your initial point right I if it’s just a question of analyzing the concept of legitimate authority all right but the analysis that he offers of legitimate authority I mean I’m going to accept your point but now I’m going to make a point about his analysis okay and that is that the particular theory he offers of legitimate Authority which he says comes from our actual practices and is the one that we have in play actually is deeply revisionist of our ordinary conception of legitimate Authority and is because our ordinary conception of legitimate Authority I mean this is a point I’ve made in other people have made is that it’s a relationship between persons and his account of legitimate authorities is a relationship between purse and reasons so that’s a deeply revisionist account and that revisionist account is ultimately supported on considerations in normative political philosophy so while it’s true that you know so but but in a certain way if you said Rawls’s theory of justice so he’s got a theory of justice do you take that to be a work in meta ethics or substantive moral and political philosophy I’m asking sincerely because the theory of legitimate authority is like a theory of Justice I mean and I always I don’t see that there’s a lot at stake and saying well Rawls is not really it’s not really a political philosophies of metathesis right you’d want to say he’s of a substance of political philosopher so for the for the same reasons that you want to say Rawls is a substitute for litical philosophy because he has a general theory of justice offering a general account of the nature of legitimate authority is to me the same kind of activity next Robert Alexei well you don’t need a microphone meet two turntables in tomorrow thank you how’s the subtle I have one in common yes em when i read joseph rats or hear your lecture today and then i come to the question of whether there at all exists legal positivist nowadays you say that separuh bility or the separation thesis is of no theoretical or a low only a low theoretical value or of no value and the connection fees is the same and are present instead of this something like a continuity thesis that is not a connection between law and morality but something like a mix em and i agree fully with you that we need moral reasons to have reasons at all for authoritative or institutional reasons

that is a kind in former times a1 what has caused this normative positivism or positivism based on morality one of the greatest examples of this in the history of league thinking is can’t form of pecking law on moral reasons and can’t tool says that in law we may rest only on authoritative reason it’s this hairs had a kind of exclusive positivism based on morality and and I think that is extremely important that we make a distinction with being person and ideas and the person’s darts or coal men say we are positivists Oh perhaps you want to say today I’m not lower a positivist perhaps you should do and I would be glad to hear this from you well and you can be I think a positivist em and you can back the authoritative pneus of law by moral reason I fully agree and then the second question appears when you have established their authoritative or institutional reasons by reasons of morality then you have to continue then you are in the realm of law and then who has to ask a second question not only backing institutional reason by morality but what to do with what heart I think convincingly has characterized as old texture and it what is a fundamental a fundamental feature of law if you want to employ ends a great open texture of law again moral reasons and I think that is it’s a second question and here I think there’s a connection thesis and the separation or separate bility thesis is an eternal question you cannot say once we had this problem and nowadays we have other problems there are four I think logical or Kwazii logical reasons there are problems which always will be there as long as we have law and you have to answer the question and let us know my question and what is in the how should we conceive how should we conceived and the application of law or legal reasoning should we apply moral reasons if the authoritative reasons are not enough to decide a case and is this only and I think our hats would say naturally we should apply moral reasons when deciding a case for s you have said in his paper on inclusion we are always subject to morality but if we are always a subject to morality and then it cannot do a different I think that means to say is that morality if we are always subject to morality and we cannot do if we do our job in the right way if we cannot do anything different from being moral in application law I think that is a declaration a declaration of non positivism and I think positivism in nowadays in the problems we receive it it’s completely different for instance from kids quezon insisted we have no moral reasons behind the law and we have no moral reason in zilla the positivist nowaday say we have moral reasons behind the law and we have moral reasons in the law why do we any longer call this legal positivism well you really want to know um well I there’s nothing I would rather do today more than make you happy but but

I’m not going to do that and that’s paint me I’m not going to reveal myself as a non positivist okay so let me explain what positivism is then positivism is a thesis of course you can people can call positivism whatever they want to call it okay and they can pick out kelson is the paradigmatic positivist that’s fine and then say everybody else is not really a positivist because they have they different in fundamental ways from kelson but I think the point that I want to make is the following positivism should be understood as a view about the determinants of legal content as a metaphysical thesis it’s not a thesis about the relationship of the admit it has implications for how we r to think about the relationship between the medic this is the second part of my paper look or whatever it is about the relationship of the normative dimensions of law to the metaphysical dimensions of law it may have implications about the relationship of the semantics of legal discourse to the metaphysics of law but first and foremost it’s a claim about the metaphysics of law which which I will now articulate and that is if we realize if we adopt the view that legal facts are not basic facts that they are facts in virtue of other facts positivism and natural law and other theories are theories about the constitutive elements of the facts in virtue of which there are legal facts and positivism holds now I mean exclusive what people call exclusive legal positivism would be the view that only facts about behavior and attitude can be the determinants of legal facts in other words necessarily only facts about behavior and attitude and that follows that is not something that people just hold because they want to hold it to be called positivist for R as for example that follows from the view that we always have moral reasons for acting and we should act on other reasons only under certain conditions and then there’s a long argument that gets you to that spot that the constitutive elements of legal facts are social facts only we don’t start out starting out with positivism is unmotivated positivism must be motivated and for someone like Raz it’s motivated from this picture of the conjunction of a variety of ideas that to be agents is to be responsive to moral reasons and moral reasons sometimes tell us to act on reasons other than moral reasons and these are sometimes authoritative reasons and in order for them to operate as authoritative reasons their content must be fixed in certain kinds of ways so positivism is something for Raz and for others that must be motivated and for him it’s motivated this way it’s not a desire I want to be called a positivist hey I don’t think he cares for one second whether people think of him in the same breath as kelson all right or that is just not the issue now for inclusive legal positivism this is one of the reasons why I I am happy and proud to have been associated with inclusive legal positivism in fact I may never be invited back to Europe my whole reputation will be ruined by what I say here today inclusive legal positivism is not so motivated inclusive legal positivism is the view that only social facts can fix the determinants of legal content and that can be social facts can sometimes say evaluative and moral facts can fix the content of law provided the relevant social facts make of the case

alright but that is not a position that is derived from anything else right okay but that so both our metaphysical positions inclusive and exclusive legal positivism should be both understood as metaphysical positions their positions about what are the facts in virtue of which legal facts obtained now then we can ask a variety of other questions about how we should understand legal discourse and legal reasoning right now there can be once one has a theory with the metaphysics in place one could then develop a theory about how legal reasoning goes or how the semantics goes and tour is over and I understand that people want to attribute to legal positivism it’s not really legal positivism unless it has a particular answer in each of these questions of a certain sort and I’m just want to resist that idea and but I also if it’s a consequence of resisting that idea that legal positivism is not interesting I want to resist that I you too because it is interesting to ask what are the necessary features of law what are the constitutive elements of legal facts and is this if you’re a positivist then you can ask the question well if you’re someone like riser myself and you believe that legal judgments or judgments that should be understood as claims about what we have more reason to do then you have a good question to ask is this semantics supportable by this metaphysics that’s a good question to ask right if you believe that legal claims are claims about what you have more reason to do but you think that the constitutive elements of law are only facts about what people say and do and the attitudes they have towards saying and doing then is this semantic supportable by this metaphysics all right so I actually think and then there’s a good question about whether you whether legal judgments if there are judgments can be derived from is judgments you know all those questions still remain so what I do think that the core idea of legal positivism is some version or other of the social facts thesis and that is perfectly compatible with there being morality in the background in fact for as it’s the fact that morality is in the background that gives you the social facts esis right and that there are moral reasons that one must appeal to moral reasons to resolve certain kinds of legal disputes when the when we say there’s a gap or something like this we I have very strong views against the open texture and so on but that that’s it aside I I think those are can be positivist views but if people don’t think they’re positive is views because they associate positivism with a certain position that’s fine with me that’s fine with me my view is a view about the the constitutive elements of legal content and I think we can draw interesting distinctions now the connectedness thesis i’m not saying is uninteresting because if it’s true one of its implications is a claim about the content of the constitutive elements of legal content that’s contrary to positivism it is that necessarily a value to facts as well as social facts contribute to legal content so I’m not saying that connectedness thesis is false or uninteresting I’m saying if true it actually has an implication that’s contrary to my view about the content of the constituents of legal content so I’m saying the separable atif ESA’s just saying that the concepts of law and morality are separated or connected in certain ways that by itself is not interesting what’s interesting are distinctive formulations next on my list is a new boolean then pierluigi casiraghi then Brian Bix and then Carlos Bernard and I think we can’t take anymore and and I hope managed with those butts fine with waiting

ah well while explaining the different approaches of positivism natural oils to the separate bility teases you resort to a metaphor of hearts hearts functioning world pumping blood and hearts and defective hearts and you conclude with the following phrase on page 10 successful laws essentially express moral requirements or permissions and thus defective laws fall short precisely by purporting to do so but not in fact doing so and in this sense defective laws even valid laws are no loss at all this sounds to me like a contradiction would you say that defective hearts are no hearts at all wherever you can sit down but I won’t even me you had to stay up to hear me look I’m talking about that’s not my position I’m articulating one way of understanding the natural law opposition I’m not I’m so I’m trying to make sense of the natural law position that a bad law is no law at all or by saying that it’s defective in a way that Rob’s it of its of its being law its law in a weak sense now so I’m saying that the the analogy is analogy with hearts so when we want to understand I forget forget the last sentence for a second the the key idea is that when we study hearts we don’t looking around at all the possible hearts in the world and ask what do they have in common that’s not how we study what hearts are we try to figure out what a successful heart does to understand what hearts are and then when this is helpful to us because we now understand what it is for a heart to be defective right so the natural lawyer by telling us to look at the successful case of law the one in which the law actually imposes obligations and meets its aspirations has it’s not just an aspirational view it’s actually has explanatory value it now gives us a sense of what it is when law though valid right is nevertheless defective and then when I said in the last sentence that it’s no law at all it’s not law in the full sense of law namely something that binds the conscience that’s all it’s intended to do and was certainly not my position I was trying to understand how we can make sense of the natural lawyer claimed that bad law is no law at all we should understand there’s a meth illogical claim an outcome of a methodological approach in which we look at the successful case first that’s all I was trying to do unsuccessful no doubt but i will not articulating my own view a pier luigi cusoon think that the picture of a future you have outlined for jurisprudence is a future of confusion actually because a legal theory and political philosophy gets mixed up like in a washing machine and in that sense your picture seems to be old stuff like a pretty intimate because if we take Bentham know you have legal theory and you have a political philosophy and a good jurist Oh to do both but to do both properly you have to consider them as separate and conspiring enterprises so the descriptive normative divide is very helpful while you’re throwing it away and the outcome cannot be but confusion but I would like to be Europe well I I’ve got nothing against confusion ah though I actually think that what what I try to do is quite clarifying and not confusing um in the following way I am not advocating that all jurisprudence should be approached from the position of

political philosophy that is if one understood me to be advocating anything of that sort that would be a confusion for which I take full responsibility actually I’m not ultimately that we have to general issues approaches through jurisprudence it has nothing to do with descriptive versus normative it has to do with whether you want to see law as fundamentally continuous with other aspects of our social life or as fundamentally connected and continuous with morality and political morality and one could approach either of those descriptively or normatively depending upon one’s view about how to address questions and jurisprudence my aim was to identify that this divide is the real divide the divide between those like myself heart Scott chaparro for example who believed that to understand law essentially is to see it in its relationship to other aspects of our social life as continuous with our forms of social organization and those like rats and workin and thinnest and perhaps professor Alexei who see it as continuous with and fundamentally connected to how moral life how they approach it methodologically is not my point my point is to get clarification that this is the fundamental issue because those of us who see it as primarily continuous with other aspects of our social life then explore and ask the question what sort of normativity those this sort of social organization naturally give rise to what are the what what is the kind of normativity that we typically think of and the fundamental idea is that the the fundamental normativity of social organization is instrumental instrumental rationality and the like whereas for those who focus primarily on laws continuity with morality the question that they asked is what what difference does law make in moral space and what must be true of law in order for it to make that difference so I am NOT asking for confusion or inviting confusion I’m trying to invite clarification by seeing that this is the fundamental issue that won’t go away the other ones about and there are other problems that won’t go away either but focusing as we have on whether validity whether morality is a condition of validity horizont they’re not you know I just have to get this out while I’m here validity is not a legal idea that a theory of jurisprudence must be responsive to validity is an artifact the theory of juror of certain juris pren shal views that is there are certain jurisprudential views can do without the very notion of validity validity is not some phenomena in the legal world that a theory has to explain so then asking questions about whether morality is a condition of legal validity is already to find yourself a victim of a certain theoretical strand I want to get rid of all that I feel like I’m running for president I want to change all that I want to bring about the change in jurisprudence that we can all believe in or at least I believe Brian Bix hello yeah it was a wonderfully thoughtful paper every few years I hear you give a paper and you remake the whole scene of jurisprudence that’s always keeps us going keeps us alive though throughout the paper the person

who kept coming to mind as I’m sure everyone else who listens you that comes to mind is John finis so if fitnesses view is amongst other things that there’s nothing the legal pause this have said that either is in a common place or trivial he says we need to focus on not the wood of law but the why of law oh and that’s what I kept hearing and then an answer to Alexei you say and say well what is it that makes you legal positives and you say well what it is is it’s the metaphysics some other physics of law it’s the facts that make that the ground the legal content now I don’t see any reason why anything finis has written is inconsistent with that anything Aquinas anything mark murphy is written is inconsistent with that now that’s not to say this is a trivial point because there are there are opponents out there and that’s good it’s good of a position that there are significant opponents but the only true that come to mind or mark greenberg and ronald dwarkin and you know that’s fun you know we can divide up the world that way and maybe what you’re trying to tell us is that it’s all this legal positivism natural law theory is not helpful and you have been trying to say that and instead we should say here’s the metaphysics of law here’s the the semantics of law here’s the proper pocha legal reasoning and legal positive natural law is not the dividing line it’s you know it’s those kind of amorphous Greenberg to work in ian’s over there and as you know straightforward rose coleman whatever metaphysicians over here is is that a proper restatement of the view well I don’t know whether what I honestly don’t know whether the only people who believe that necessarily a value to fact I think Alexia’s clearly falls on the side of those you know this may be the worst thing that’s ever happened to you to be lumped together with Ronald Dworkin in this way you know he’s a fine dresser but so so but I mean but there might be III do think there are people who believe that necessarily social facts do not fix the content of their inadequate to fix the content of law and that Alexia is among them so I don’t know whether finis is among I just don’t want to I don’t to be perfectly honest I don’t care whether something is called positivism or not I care whether we make progress on understanding the relationship of legal facts to those things in virtue of which they are legal facts I care whether or not we make progress on understanding that legal statements should be understood as statements of a certain sort I care whether or not that is compatible with various views about what the content of legal facts are I care about whether and under what conditions law can give rise to reasons without it being the case that one’s a reductionist about reasons I care about those issues I don’t care about the names and I don’t see why anybody should and that’s why I’m proud to be a positivist because there’s so little at stake at calais Donna thank you very much I find a really very interesting in your distinction between the fundamental sociality of law and the fundamental morality of law these difference of approaches but but I would like to ask you whether you think that what we actually need is both of them for instance we can agree that the law is a collective intentional activity and for instance there are many some things in the law that are impossible to explain if we just think that law is continuous with morality for instance the idea of a empowerment the power conferred norms are more likely to be explained if we think as the law of the lowest social institution that is a collective intentional activity but on the other hand if we compare the law with all the collective intentional activities and we can take some examples of the from the literature of social ontology a painting a house taking a walk together playing chess a massive collective intentional activities like being in a huge corporation working for a multinational compared corporation maybe the special feature of the law

Idzik is 0 or one of the special feature of the laws is the connection to morality in which the way which the law is related to morality what do you think about that well I’m not sure that I got look I think the my fundamental point is that this divide has survived and it’s survived because there seems to be something missing in both pictures right now do I believe that we can’t do it with just one picture and that that we there will always be this incompatible divide and we both right do I believe that well frankly no I don’t believe that but I don’t have an argument I’m just trying to at this point introduce what I think are the fundamental dividing lines so I don’t think positivism non positivism is the fundamental dividing line I think different views about the the constitutive elements of legal facts are I don’t think and I do think that the fundamental divide is those who think law primarily what you want to explain is it’s the difference law makes in moral space and those people who think that the fundamental thing you want to understand about law is the way it’s connected to other aspects of our social life now do I think at the end of the day there isn’t going to be a really compelling theory on one side of the other no I don’t believe that but I don’t have that theory yet at all but I’m just trying to identify where I think the real issues lie and the right ways to approach them not their resolution I’m just trying to clear the deck have us rethink the field categorize things and formulate things differently so that we can make progress not so that I could advance of you I don’t have a view I have an architecture I think I miscalculated we have five more minutes and we can take one more questions I think the lady here here thank you very much for allowing me to to address this comment I want to refer to to your point that resemblances similarities between theories are important and illuminating and we should take them to into account and not just focus on the on the differences and I agree with you that these might be important because what perhaps what simulate similarities show between different conceptions is that common ground of discussion the common assumptions and perhaps and connected to the connecting this discussion to the one that we had yesterday on necessary and sufficient conditions for the concept of law perhaps this common ground is connected to what we consider as being necessary and sufficient conditions for saying what law is on the other hand it seems to me that differences are also important and we don’t have to go you know don’t have to go to an extreme of course differences could be of several types there could be artificial differences artificially induced by let’s say and I’m going to formulate a not a methodological argument but a rather practical one perhaps the way we do jurisprudence and we teach jurisprudence and our need for organizing and classifying conceptions within jurisprudence creates artificial differences between conceptions that are not in the first place on the other hand there seems to be some genuine differences which which we shouldn’t forget and those could also be illuminating in addition to the

resemblances because those could provide those let’s say what we called yesterday the the important but non necessary conditions for defining what law is so even if on one hand it is illuminating to see the the similarities between positions such as Rises and workings because it shows what to major scholars believe that there are unproblematic assumptions about law on the other hand the differences between them are equally important because they show or they reveal those important but unnecessary or not Universal features that law might have what do you think how how much should we or how much would you emphasize on their resemblances the similarities and the differences well you oh thank you just um on resins working for a second my my entire point was to show that their differences derive from what they share that is um you wouldn’t really understand the dwarkin believes that necessarily moral or evaluative as well as social facts fix the content of law and raz believes that only social facts can fix the content of law that’s a big difference I was not denying that that’s a big difference I don’t know that there’s a bigger difference than that difference that is the important difference but my whole point was what’s really interesting is to see that that difference has roots in deeply and ground it isn’t to emphasize the common ground at the expense of the difference it’s actually to illuminate that the differences derive from common point of departure that the fundamental way to illuminate jurisprudence is to see its continuity laws continuity with morality and to see that one cannot approach questions in jurisprudence other than through questions in first order political morality and with that common ground you nevertheless end up with these fundamentally different views about the constitutive elements of law legal facts my entire point is not to dismiss the difference but to show us where the differences actually come from and my aim is not in general to make light of or eliminate important differences is to identify which differences are important and why I I want us not to be distracted by less significant differences so that we might better focus on the differences that matter if we don’t we won’t make real progress that’s my thought well thank you very much for an excellent session we meet again you