David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Ratio Juris 22 (3):359-394 (2009)
In this essay, I characterize the original intervention that became Inclusive Legal Positivism, defend it against a range of powerful objections, explain its contribution to jurisprudence, and display its limitations and its modest jurisprudential significance. I also show how in its original formulations ILP depends on three notions that are either mistaken or inessential to law: the separability thesis, the rule of recognition, and the idea of criteria of legality. The first is false and is in event inessential to legal positivism. The second is inessential to legal positivism. The third is likely inessential to law. I then characterize the central claim of ILP in a way that relies on none of these: ILP is the claim that necessarily social facts determine the determinants of legal content. I show that ILP so conceived leaves the central debates in law largely untouched. I suggest how the most fundamental of these—the question of the normativity of law—at least can be usefully addressed. The essay closes by suggesting that even though one can distinguish the social from the normative dimensions of law, a theory of the nature of law is necessarily an account of the relationship between the two: It is a theory either of the difference that certain distinctive social facts make in normative space, or it is an account of the distinctive normative difference that law makes, and the social and other facts that are necessary to explain that difference. One can distinguish between but one cannot separate the social from the normative aspects of legality.
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References found in this work BETA
R. M. Dworkin (1988). Law's Empire. Harvard University Press.
Joseph Raz (1994). Ethics in the Public Domain: Essays in the Morality of Law and Politics. Oxford University Press.
Jules L. Coleman (2001). The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory. Oxford University Press.
Jules L. Coleman (2007). Beyond the Separability Thesis: Moral Semantics and the Methodology of Jurisprudence. Oxford Journal of Legal Studies 27 (4):581-608.
Scott J. Shapiro (2007). The "Hart-Dworkin" Debate : A Short Guide for the Perplexed. In Arthur Ripstein (ed.), Ronald Dworkin. Cambridge University Press 22--49.
Citations of this work BETA
Christopher Essert (2013). Legal Obligation and Reasons. Legal Theory 19 (1):63-88.
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