The Conceptual Possibility of Moral Criteria of Legal Validity

This chapter gives a positive argument for the claim that the criteria of validity can incorporate moral constraints on the content of law. It thus concludes the defense of the Incorporation Thesis undertaken in the last two chapters. The argument in question constructs a model of an institutional normative system that validates all and only mandatory moral norms in a possible world. The chapter argues that we must do two things to show the conceptual possibility of a legal system with moral criteria of validity. First, we must produce a model of an institutional normative system in a world resembling this one that can plausibly be interpreted as having moral criteria of validity that clearly satisfies every condition plausibly thought to be necessary for the existence of law. Second, to ensure that the model establishes the Incorporation Thesis, it should be incompatible with an exclusivist interpretation.

To Whom the Rules Apply

This chapter is concerned with two arguments for the claim that the norms of an institutional normative system with moral criteria of validity are incapable of guiding behavior (the Guidance Arguments). The problem, on this line of reasoning, is that neither a rule of recognition that validates norms on the basis of moral merit nor a norm that is valid in virtue of moral merit can properly guide the people they must be able to guide to perform law’s conceptual function. This chapter thus challenges the Guidance Arguments. It argues that the guidance function of law does not imply that every legal norm must be capable of guiding or informing the behavior of every person. It implies only that every legal norm must be capable of guiding or informing the behavior of every person whose behavior it governs.

Inclusive Positivism and the Arguments from Authority

This chapter explores the various tensions that might be thought to arise between the Incorporation Thesis and practical authority. The Incorporation Thesis states that there is a conceptually possible legal system with moral criteria of validity. In such a legal system, the properties that constitute a norm as legally valid include properties having to do with whether its content satisfies certain moral standards. This chapter begins with a general discussion of the differences between practical and epistemic authority. The chapter then articulates the various theses associated with the so-called service conception of authority and concludes with a summary of the arguments for the claim that this conception of authority is inconsistent with the Incorporation Thesis.

Rethinking the Traditional Interpretation of Anti-Positivist Theories

This chapter challenges the traditional interpretation of classical natural law theories and Dworkinian interpretivism. It argues that these theories are best construed as explicating a different concept of law than the one positivism seeks to explicate. The concept that positivism seeks to explicate is a purely descriptive concept that applies to any norm that has been recognized, applied, or enforced in something that counts as a legal system. In contrast, the concept that classical natural law theories and interpretivism seek to explicate is more aptly construed as grounded in the descriptive concept that positivism seeks to explicate but also has evaluative content that applies only to valid norms that can be characterized as law “in the fullest sense.” Thus construed, these theories complement rather than rival positivism and are hence misleadingly characterized as “anti-positivist.”

Relationships Between Law and Morality

This chapter distinguishes three types of inquiry about law. It articulates the two conceptual views about morality and the nature of law that comprise the focus of this volume. First, the chapter explains positivist and anti-positivist views with respect to whether it is a conceptual truth that the criteria of legal validity include moral constraints on the content of law. It then turns to the dispute between inclusive and exclusive positivists with respect to whether it is conceptually possible for a legal system to have content-based moral criteria of validity. Finally, this chapter argues that the claim that conceptual jurisprudence should not be done is either unclear or false.

Authority, Moral Criteria of Validity, and Conceptual Confusion

This chapter challenges the Identification Thesis. The Identification Thesis considers our conceptual practices with respect to the term ‘authority’ and states that they entail that an institutional normative system cannot be legitimate unless it is conceptually possible for a subject to determine what its norms require without having to decide themselves what they ought to do. If our conceptual practices with respect to using the terms ‘law’ and ‘authority’ are determined by what competent speakers typically believe and say about law and authority, then those ordinary linguistic practices allow for the possibility of a legitimate legal system with moral criteria of validity. Our conceptual practices are thus inconsistent with the Identification Thesis. As the Identification Thesis expresses the core of the service conception of authority, the service conception is inconsistent with the concept of authority as it is defined by our conceptual practices.

Introduction

The notion of law that is typically the focus of conceptual jurisprudence applies to all and only institutional systems of norms; it is clearly part of the nature of law that it is institutional. As such, the concept-term “law” picks out paradigms of institutional systems of both municipal law and international law. These systems regulate different kinds of behavior: institutional systems of municipal law, as a conceptual matter, necessarily involve state regulation of both official and non-official behavior while institutional systems of international law necessarily involve multinational regulation of ...

Law’s Claim of Legitimate Authority

This chapter determines whether the Authority Thesis is true. The Authority Thesis is based on the idea of a conceptual truth that law claims legitimate authority and hence that it is a conceptual truth that law is capable of being legitimate. This is the foundation of the Incorporation Thesis. Insofar as the notion of legitimate authority is a concept with morally normative content, it is important to understand whether it is part of law’s nature that it claims legitimate authority. To this end, the chapter attempts to determine whether the arguments against the Incorporation Thesis succeed, as well as to facilitate a deeper understanding of the conceptual relationships between law and morality.

Legal Positivism and the Possibility of Moral Criteria of Validity

This chapter provides an overview of the theses associated with the various forms of legal positivism. It begins with a discussion of the assumption that legal norms and systems have certain properties that distinguish them from other norms and systems that purport to govern or regulate the behavior of subjects. The chapter continues with a description of the core theses of legal positivism. These theses are intended to identify the conceptually necessary properties that constitute something as law and distinguish things that count as law from things that do not count as law. Finally, this chapter closes with an explication of inclusive and exclusive positivism.