Legal Positivism

Legal positivism is a philosophy of law that emphasizes the

conventional nature of lawthat it is socially constructed.
According to legal positivism, law is synonymous with
positive norms, that is, norms made by the legislator or
considered as common law or case law. Formal criteria of
laws origin, law enforcement and legal effectiveness are all
sufficient for social norms to be considered law. Legal
positivism does not base law on divine commandments,
reason, or human rights. As an historical matter, positivism
arose in opposition to classical natural law theory, according
to which there are necessary moral constraints on the
content of law.
Legal positivism does not imply an ethical justification for
the content of the law, nor a decision for or against the
obedience to law. Positivists do not judge laws by questions
of justice or humanity, but merely by the ways in which the
laws have been created. This includes the view that judges
make new law in deciding cases not falling clearly under a
legal rule. Practicing, deciding or tolerating certain practices
of law can each be considered a way of creating law.
Within legal doctrine, legal positivism would be opposed to
sociological jurisprudence and hermeneutics of law, which
study the concrete prevailing circumstances of statutory
interpretation in society.
The word positivism was probably first used to draw
attention to the idea that law is positive or posited, as
opposed to being natural in the sense of being derived from
natural law or morality.
Table of Contents
1 The Pedigree Thesis
2 The Separability Thesis
1
Inclusive vs. Exclusive Positivism
3 The Discretion Thesis
4 Classic Criticisms of Positivism
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1
Fuller's Internal Morality of Law
2
Positivism and Legal Principles
3
The Semantic Sting
5 References and Further Reading
1. The Pedigree Thesis
The pedigree thesis asserts that legal validity is a function of
certain social facts. Borrowing heavily from Jeremy
Bentham, John Austin argues that the principal
distinguishing feature of a legal system is the presence of a
sovereign who is habitually obeyed by most people in the
society, but not in the habit of obeying any determinate
human superior (Austin 1995, p. 166). On Austin's view, a
rule R is legally valid (that is, is a law) in a society S if and
only if R is commanded by the sovereign in S and is backed
up with the threat of a sanction. The severity of the
threatened sanction is irrelevant; any general sovereign
imperative supported by a threat of even the smallest harm is
a law.
Austin's command theory of law is vulnerable to a number of
criticisms. One problem is that there appears to be no
identifiable sovereign in democratic societies. In the United
States, for example, the ultimate political power seems to
belong to the people, who elect lawmakers to represent their
interests. Elected lawmakers have the power to coerce
behavior but are regarded as servants of the people and not
as repositories of sovereign power. The voting population, on
the other hand, seems to be the repository of ultimate
political authority yet lacks the immediate power to coerce
behavior. Thus, in democracies like that of the United States,
the ultimate political authority and the power to coerce
behavior seem to reside in different entities.
A second problem has to do with Austin's view that the
sovereign lawmaking authority is incapable of legal
limitation. On Austin's view, a sovereign cannot be legally
constrained because no person (or body of persons) can
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coerce herself (or itself). Since constitutional provisions limit

the authority of the legislative body to make laws, Austin is
forced to argue that what we refer to as constitutional law is
really not law at all; rather, it is principally a matter of
"positive morality" (Austin 1977, p. 107).
Austin's view is difficult to reconcile with constitutional law
in the United States. Courts regard the procedural and
substantive provisions of the constitution as constraints on
legal validity. The Supreme Court has held, for example, that
"an unconstitutional act is not a law; it confers no rights; it
imposes no duties; it is, in legal contemplation, as
inoperative as though it had never been passed." (Norton v.
Shelby County, 118 U.S. 425 (1886)). Moreover, these
constraints purport to be legal constraints: the Supremacy
Clause of Article VI of the Constitution states that "[t]his
Constitution ... shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby."
The most influential criticisms of Austin's version of the
pedigree thesis, however, owe to H. L. A. Hart's seminal
work, The Concept of Law. Hart points out that Austin's
theory provides, at best, a partial account of legal validity
because it focuses on one kind of rule, namely that which
requires citizens "to do or abstain from certain actions,
whether they wish to or not" (Hart 1994, p. 81). While every
legal system must contain so-called primary rules that
regulate citizen behavior, Hart believes a system consisting
entirely of the kind of liberty restrictions found in the
criminal law is, at best, a rudimentary or primitive legal
system.
On Hart's view, Austin's emphasis on coercive force leads
him to overlook the presence of a second kind of primary
rule that confers upon citizens the power to create, modify,
and extinguish rights and obligations in other persons. As
Hart points out, the rules governing the creation of contracts
and wills cannot plausibly be characterized as restrictions on
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freedom that are backed by the threat of a sanction. These

rules empower persons to structure their legal relations
within the coercive framework of the law-a feature that Hart
correctly regards as one of "law's greatest contributions to
social life." The operation of power-conferring primary rules,
according to Hart, indicates the presence of a more
sophisticated system for regulating behavior.
But what ultimately distinguishes societies with full-blown
systems of law from those with only rudimentary or
primitive forms of law is that the former have, in addition to
first-order primary rules, secondary meta-rules that have as
their subject matter the primary rules themselves:
[Secondary rules] may all be said to be on a different level
from the primary rules, for they are all about such rules; in
the sense that while primary rules are concerned with the
actions that individuals must or must not do, these
secondary rules are all concerned with the primary rules
themselves. They specify the way in which the primary rules
may be conclusively ascertained, introduced, eliminated,
varied, and the fact of their violation conclusively
determined (Hart 1994, p. 92).
Hart distinguishes three types of secondary rules that mark
the transition from primitive forms of law to full-blown legal
systems: (1) the rule of recognition, which "specif[ies] some
feature or features possession of which by a suggested rule is
taken as a conclusive affirmative indication that it is a rule of
the group to be supported by the social pressure it exerts"
(Hart 1994, p. 92); (2) the rule of change, which enables a
society to add, remove, and modify valid rules; and (3) the
rule of adjudication, which provides a mechanism for
determining whether a valid rule has been violated. On
Hart's view, then, every society with a full-blown legal
system necessarily has a rule of recognition that articulates
criteria for legal validity that include provisions for making,
changing and adjudicating law. Law is, to use Hart's famous
4

phrase, "the union of primary and secondary rules" (Hart

1994, p. 107). Austin theory fails, on Hart's view, because it
fails to acknowledge the importance of secondary rules in
manufacturing legal validity.
Hart also finds fault with Austin's view that legal obligation
is essentially coercive. According to Hart, there is no
difference between the Austinian sovereign who governs by
coercing behavior and the gunman who orders someone to
hand over her money. In both cases, the subject can
plausibly be characterized as being "obliged" to comply with
the commands, but not as being "duty-bound" or "obligated"
to do so (Hart 1994, p. 80). On Hart's view, the application of
coercive force alone can never give rise to an obligation-legal
or otherwise.
Legal rules are obligatory, according to Hart, because people
accept them as standards that justify criticism and, in
extreme cases, punishment of deviations:
What is necessary is that there should be a critical reflective
attitude to certain patterns of behavior as a common
standard, and that this should display itself in criticism
(including self-criticism), demands for conformity, and in
acknowledgements that such criticism and demands are
justified, all of which find their characteristic expression in
the normative terminology of 'ought', 'must', and 'should',
and 'right' and 'wrong' (Hart 1994, p. 56).
The subject who reflectively accepts the rule as providing a
standard that justifies criticism of deviations is said to take
"the internal point of view" towards it.
On Hart's view, it would be too much to require that the bulk
of the population accept the rule of recognition as the
ultimate criteria for legal validity: "the reality of the situation
is that a great proportion of ordinary citizens-perhaps a
majority-have no general conception of the legal structure or
its criteria of validity" (Hart 1994, p. 111). Instead, Hart
argues that what is necessary to the existence of a legal
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system is that the majority of officials take the internal point

of view towards the rule of recognition and its criteria of
validity. All that is required of citizens is that they generally
obey the primary rules that are legally valid according to the
rule of recognition.
Thus, on Hart's view, there are two minimum conditions
sufficient and necessary for the existence of a legal system:
"On the one hand those rules of behavior which are valid
according to the system's ultimate criteria of validity must be
generally obeyed, and, on the other hand, its rules of
recognition specifying the criteria of legal validity and its
rules of change and adjudication must be effectively accepted
as common public standards of official behavior by its
officials" (Hart 1994, p. 113).
Hart's view is vulnerable to the same criticism that he levels
against Austin. Hart rejects Austin's view because the
institutional application of coercive force can no more give
rise to an obligation than can the application of coercive
force by a gunman. But the situation is no different if the
gunman takes the internal point of view towards his
authority to make such a threat. Despite the gunman's belief
that he is entitled to make the threat, the victim is obliged,
but not obligated, to comply with the gunman's orders. The
gunman's behavior is no less coercive because he believes he
is entitled to make the threat.
Similarly, in the minimal legal system, only the officials of
the legal system take the internal point of view towards the
rule of recognition that endows them with authority to make,
execute, adjudicate, and enforce the rules. The mere
presence of a belief in the officials that they are entitled to
make law cannot give rise to an obligation in other people to
comply with their enactments any more than the presence of
a belief on the part of a gunman that he is entitled to issue
orders gives rise to an obligation in the victim to comply with
those orders. Hart's minimal legal system is no less coercive
6

than Austin's legal system.

2. The Separability Thesis
The second thesis comprising the foundation of legal
positivism is the separability thesis. In its most general form,
the separability thesis asserts that law and morality are
conceptually distinct. This abstract formulation can be
interpreted in a number of ways. For example, Klaus Faber
(1996) interprets it as making a meta-level claim that the
definition of law must be entirely free of moral notions. This
interpretation implies that any reference to moral
considerations in defining the related notions of law, legal
validity, and legal system is inconsistent with the separability
thesis.
More commonly, the separability thesis is interpreted as
making only an object-level claim about the existence
conditions for legal validity. As H.L.A. Hart describes it, the
separability thesis is no more than the "simple contention
that it is in no sense a necessary truth that laws reproduce or
satisfy certain demands of morality, though in fact they have
often done so" (Hart 1994, pp. 181-82). Insofar as the objectlevel interpretation of the separability thesis denies it is a
necessary truth that there are moral constraints on legal
validity, it implies the existence of a possible legal system in
which there are no moral constraints on legal validity.
a. Inclusive vs. Exclusive Positivism
Though all positivists agree there are possible legal systems
without moral constraints on legal validity, there are
conflicting views on whether there are possible legal systems
with such constraints. According to inclusive positivism (also
known as incorporationism and soft positivism), it is
possible for a society's rule of recognition to incorporate
moral constraints on the content of law. Prominent inclusive
positivists include Jules Coleman and H.L.A. Hart, who
maintains that "the rule of recognition may incorporate as
criteria of legal validity conformity with moral principles or
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substantive values ... such as the Sixteenth or Nineteenth

Amendments to the United States Constitution respecting
the establishment of religion or abridgements of the right to
vote" (Hart 1994, p. 250).
In contrast, exclusive positivism (also called hard positivism)
denies that a legal system can incorporate moral constraints
on legal validity. Exclusive positivists like Joseph Raz (1979,
p. 47) subscribe to the source thesis, according to which the
existence and content of law can always be determined by
reference to its sources without recourse to moral argument.
On this view, the sources of law include both the
circumstances of its promulgation and relevant
interpretative materials, such as court cases involving its
application.
At first glance, exclusive positivism may seem difficult to
reconcile with what appear to be moral criteria of legal
validity in legal systems like that of the United States. For
example, the Fourth Amendment provides that "[t]he right
of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures, shall
not be violated." Likewise, the First Amendment prohibits
laws abridging the right of free speech. Taken at face value,
these amendments seem to make moral standards part of the
conditions for legal validity.
Exclusive positivists argue that such amendments can
require judges to consider moral standards in certain
circumstances, but cannot incorporate those standards into
the law. When a judge makes reference to moral
considerations in deciding a case, she necessarily creates new
law on an issue-and this is so even when the law directs her
to consider moral considerations, as the Bill of Rights does in
certain circumstances. On this view, all law is settled law and
questions of settled law can be resolved without recourse to
moral arguments:
The law on a question is settled when legally binding sources
8

provide its solution. In such cases judges are typically said to

apply the law, and since it is source-based, its application
involves technical, legal skills in reasoning from those
sources and does not call for moral acumen. If a legal
question is not answered by standards deriving from legal
sources then it lacks a legal answer-the law on such
questions is unsettled. In deciding such cases courts
inevitably break new (legal) ground and their decision
develops the law.... Naturally, their decisions in such cases
rely at least partly on moral and other extra-legal
considerations (Raz 1979, pp. 49-50).
If the judge can resolve an issue involving the First
Amendment merely by applying past court decisions, then
the issue is settled by the law; if not, then the issue is
unsettled. Insofar as the judge looks to controversial moral
standards to resolve the issue, she is going beyond the law
because the mere presence of controversy about the law
implies that it is indeterminate. Thus, on Raz's view,
references to moral language in the law, at most, direct
judges to consider moral requirements in resolving certain
unsettled questions of law. They cannot incorporate moral
requirements into the law.
3. The Discretion Thesis
Third thesis commonly associated with positivism is the
discretion thesis, according to which judges decide difficult
cases by making new law in the exercise of discretion.
Ronald Dworkin describes this thesis as follows:
The set of these valid legal rules is exhaustive of 'the law', so
that if someone's case is not clearly covered by such a rule . . .
then that case cannot be decided by 'applying the law.' It
must be decided by some official, like a judge, 'exercising his
discretion,' which means reaching beyond the law for some
other sort of standard to guide him in manufacturing a fresh
legal rule or supplementing an old one (Dworkin 1977, p. 17).
On this view, a judge cannot decide a case that does not fall
9

clearly under a valid rule by interpreting or applying the law;

she must decide the case by creating or promulgating a law
that did not exist prior to the adjudication. Thus, the
discretion thesis implies that judges are empowered with a
quasi-legislative lawmaking authority in cases that cannot be
decided merely by applying law.
Though often associated with positivism, the discretion
thesis does not belong to positivism's theoretical core. The
pedigree and separability theses purport to be conceptual
claims that are true of every possible legal system. These two
claims jointly assert that, in every possible legal system,
propositions of law are valid in virtue of having been
manufactured according to some set of social conventions.
On this view, there are no moral constraints on the content
of law that hold in every possible legal system.
But many positivists regard the discretion thesis as a
contingent claim that is true of some, but not all, possible
legal systems. Hart, for example, believes there will
inevitably arise cases that do not fall clearly under a rule, but
concedes a rule of recognition could deny judges discretion
to make law in such cases by requiring judges "to disclaim
jurisdiction or to refer the points not regulated by the
existing law to the legislature to decide" (Hart 1994, p. 272).
Indeed, Hart's inclusive positivism allows him to hold that a
rule of recognition could require judges to decide cases in
precisely the manner that Dworkin advocates (Hart 1994, p.
263; and see Section IV-2, infra). Thus, at least for inclusive
positivists like Hart, the discretion thesis makes a different
kind of claim than the conceptual claims that form
positivism's theoretical core (Himma 1999).
Moreover, the discretion thesis is consistent with some forms
of natural law theory. According to Blackstone's classical
naturalism, conformity with the natural law is a necessary
condition for legal validity in every possible legal system. But
insofar as the natural law is incomplete, there will inevitably
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arise issues that have multiple outcomes consistent with the

natural law. Since none of the relevant outcomes in such
cases offend the natural law, there is nothing in the
assumption of necessary moral constraints on the content of
law, in and of itself, that precludes Blackstone from
endorsing the discretion thesis in such cases. Of course, if
Blackstone believes the natural law contains a principle
denying discretion to judges, then that commitment is
inconsistent with the discretion thesis. But the assertion
there are necessary constraints on the content of law, in and
of itself, is consistent with the discretion thesis, even
construed as a conceptual claim, as long as there are cases to
which the natural law is indifferent.
In any event, Dworkin distinguishes three different senses in
which a judge might be said to have discretion: (1) a judge
has discretion when she exercises judgment in applying a
legal standard to a particular case; (2) a judge has discretion
when her decision is not subject to reversal by any other
authority; and (3) a judge has discretion when her decision is
not bound by any legal standards.
According to Dworkin, positivism's discretion thesis is
committed to the third sense of discretion, which he refers to
as strong discretion. On Dworkin's view, the thesis that
judges have discretion only in the sense that they exercise
judgment is trivially true, while the thesis that judges have
discretion in the sense that their decisions are not subject to
being reversed by a higher authority is false. Even the
Supreme Court can be reversed by Congress or by
constitutional amendment. Thus, on Dworkin's view, the
discretion thesis implies that judges have discretion to
decide hard cases by what amounts to an act of legislation
because the judge is not bound by any legal standards.
Thus construed, the discretion thesis is inconsistent with
ordinary legal practice. Even in the most difficult of cases
where there is no clearly applicable law, lawyers do not ask
11

that the judge decide the relevant issue by making new law.
Each lawyer cites cases favorable to her client's position and
argues that the judge is bound by those cases to decide in her
client's favor. As a practical matter, lawyers rarely, if ever,
concede there are no legal standards governing a case and
ask the judge to legislate in the exercise of discretion.
Nevertheless, the problem with Dworkin's analysis is that it
falsely presupposes an official cannot make new law unless
there are no legal standards constraining the official's
decision. Indeed, lawmaking authorities in legal systems like
the U.S. never have what Dworkin describes as strong
discretion. Even the legislative decisions of Congress, the
highest legislative authority in the nation, are always
constrained by constitutional standards. For example, under
the Fourteenth Amendment, Congress cannot enact a law
that sets one speed limit for male drivers on interstate
highways and another for female drivers.
For his part, Hart concedes that judicial lawmaking authority
is limited in two respects: "not only are the judge's powers
subject to many constraints narrowing his choice from
which a legislature may be quite free, but since the judge's
powers are exercised only to dispose of particular instant
cases he cannot use these to introduce large-scale reforms or
new codes" (Hart 1994, p. 273). What explains the judge's
discretion to make new law in a given case, on Hart's view, is
not the absence of legal standards constraining her decision;
rather it is the absence of legal standards that dictate a
uniquely correct answer to the case. The judge cannot decide
such a case merely by applying existing law because there is
more than one available outcome that coheres with existing
law. In such instances, it is impossible to render a
substantive decision (as opposed to simply referring the
matter back to the legislature) without creating new law.
The discretion thesis is vulnerable to one powerful objection.
Insofar as a judge decides a difficult case by making new law
12

in the exercise of discretion, the case is being decided on the

basis of a law that did not exist at the time the dispute arose.
If, for example, a judge awards damages to a plaintiff by
making new law in the exercise of discretion, it follows that
she has held the defendant liable under a law that did not
exist at the time the dispute arose. And, as Dworkin points
out, it seems patently unfair to deprive a defendant of
property for behavior that did not give rise to liability at the
time the behavior occurred.
Nevertheless, Dworkin's view fares no better on this count.
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 pre-existing 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 pre-existing
law. Since the right answer to even hard legal disputes is
always part of pre-existing law, Dworkin believes that a judge
can take property from a defendant in a hard case without
unfairness (Dworkin 1977, pp. 87-130).
But if fairness precludes taking property from a defendant
under a law that did not exist at the time of the relevant
behavior, it also precludes taking property from a defendant
under a law that did not give reasonable notice that the
relevant behavior gives rise to liability. Due process and
fundamental fairness require reasonable notice of which
behaviors give rise to liability. As long as Dworkin
acknowledges the existence of cases so difficult that only the
best of judges can solve them, his theory is vulnerable to the
same charge of unfairness that he levels at the discretion
thesis.
4. Classic Criticisms of Positivism
a. Fuller's Internal Morality of Law
In The Morality of Law, Lon L. Fuller argues that law is
13

subject to an internal morality consisting of eight principles:

(P1) the rules must be expressed in general terms; (P2) the
rules must be publicly promulgated; (P3) the rules must be
(for the most part) prospective in effect; (P4) the rules must
be expressed in understandable terms; (P5) the rules must
be consistent with one another; (P6) the rules must not
require conduct beyond the powers of the affected parties;
(P7) the rules must not be changed so frequently that the
subject cannot rely on them; and (P8) the rules must be
administered in a manner consistent with their wording
(Fuller 1964, p. 39).
On Fuller's view, no system of rules that fails minimally to
satisfy these principles of legality can achieve law's essential
purpose of achieving social order through the use of rules
that guide behavior. A system of rules that fails to satisfy
(P2) or (P4), for example, cannot guide behavior because
people will not be able to determine what the rules require.
Accordingly, Fuller concludes that his eight principles are
"internal" to law in the sense that they are built into the
existence conditions for law: "A total failure in any one of
these eight directions does not simply result in a bad system
of law; it results in something that is not properly called a
legal system at all" (Fuller 1964, p. 39).
These internal principles constitute a morality, according to
Fuller, because law necessarily has positive moral value in
two respects: (1) law conduces to a state of social order and
(2) does so by respecting human autonomy because rules
guide behavior. Since no system of rules can achieve these
morally valuable objectives without minimally complying
with the principles of legality, it follows, on Fuller's view,
that they constitute a morality. Since these moral principles
are built into the existence conditions for law, they are
internal and hence represent a conceptual connection
between law and morality that is inconsistent with the
separability thesis.
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Hart responds by denying Fuller's claim that the principles

of legality constitute an internal morality; on Hart's view,
Fuller confuses the notions of morality and efficacy:
[T]he author's insistence on classifying these principles of
legality as a "morality" is a source of confusion both for him
and his readers.... [T]he crucial objection to the designation
of these principles of good legal craftsmanship as morality,
in spite of the qualification "inner," is that it perpetrates a
confusion between two notions that it is vital to hold apart:
the notions of purposive activity and morality. Poisoning is
no doubt a purposive activity, and reflections on its purpose
may show that it has its internal principles. ("Avoid poisons
however lethal if they cause the victim to vomit"....) But to
call these principles of the poisoner's art "the morality of
poisoning" would simply blur the distinction between the
notion of efficiency for a purpose and those final judgments
about activities and purposes with which morality in its
various forms is concerned (Hart 1965, pp. 1285-86).
On Hart's view, all actions, including virtuous acts like
lawmaking and impermissible acts like poisoning, have their
own internal standards of efficacy. But insofar as such
standards of efficacy conflict with morality, as they do in the
case of poisoning, it follows that they are distinct from moral
standards. Thus, while Hart concedes that something like
Fuller's eight principles are built into the existence
conditions for law, he concludes that they do not constitute a
conceptual connection between law and morality.
Unfortunately, Hart's response overlooks the fact that most
of Fuller's eight principles double as moral ideals of fairness.
For example, public promulgation in understandable terms
may be a necessary condition for efficacy, but it is also a
moral ideal; it is morally objectionable for a state to enforce
rules that have not been publicly promulgated in terms
reasonably calculated to give notice of what is required.
Similarly, we take it for granted that it is wrong for a state to
15

enact retroactive rules, inconsistent rules, and rules that

require what is impossible. Poisoning may have its internal
standards of efficacy, but such standards are distinguishable
from the principles of legality in that they conflict with moral
ideals.
Nevertheless, Fuller's principles operate internally, not as
moral ideals, but merely as principles of efficacy. As Fuller
would likely acknowledge, the existence of a legal system is
consistent with considerable divergence from the principles
of legality. Legal standards, for example, are necessarily
promulgated in general terms that inevitably give rise to
problems of vagueness. And officials all too often fail to
administer the laws in a fair and even-handed manner-even
in the best of legal systems. These divergences may always be
prima facie objectionable, but they are inconsistent with a
legal system only when they render a legal system incapable
of performing its essential function of guiding behavior.
Insofar as these principles are built into the existence
conditions for law, it is because they operate as efficacy
conditions-and not because they function as moral ideals.
Fuller's jurisprudential legacy, however, should not be
underestimated. While positivists have long acknowledged
that law's essential purpose is to guide behavior through
rules (e.g., John Austin writes that "[a] law .. may be defined
as a rule laid down for the guidance of an intelligent being by
an intelligent being having power over him" Austin 1977, p.
5), they have not always appreciated the implications of this
purpose. Fuller's lasting contribution to the theory of law
was to flesh out these implications in the form of his
principles of legality.
b. Positivism and Legal Principles
Dworkin argues that, in deciding hard cases, judges often
invoke legal principles that do not derive their authority
from an official act of promulgation (Dworkin 1977, p. 40).
These principles, Dworkin believes, must be characterized as
16

law because judges are bound to consider them when

relevant. But if unpromulgated legal principles constitute
law, then it is false, contra the pedigree thesis, that a
proposition of law is valid only in virtue of having been
formally promulgated.
According to Dworkin, principles and rules differ in the kind
of guidance they provide to judges:
Rules are applicable in an all-or-nothing fashion. If the facts
a rule stipulates are given, then either the rule is valid, in
which case the answer it supplies must be accepted, or it is
not, in which case it contributes nothing to the decision....
But this is not the way principles operate.... [A principle]
states a reason that argues in one direction, but does not
necessitate a particular decision (Dworkin 1977, pp. 24-25).
On Dworkin's view, conflicting principles provide competing
reasons that must be weighed according to the importance of
the respective values they express. Thus, rules are
distinguishable from principles in two related respects: (1)
rules necessitate, where principles only suggest, a particular
outcome; and (2) principles have, where rules lack, the
dimension of weight.
Dworkin cites the case of Riggs v. Palmer as representative
of how judges use principles to decide hard cases. In Riggs,
the court considered the question of whether a murderer
could take under the will of his victim. At the time the case
was decided, neither the statutes nor the case law governing
wills expressly prohibited a murderer from taking under his
victim's will. Despite this, the court declined to award the
defendant his gift under the will on the ground that it would
be wrong to allow him to profit from such a grievous wrong.
On Dworkin's view, the court decided the case by citing "the
principle that no man may profit from his own wrong as a
background standard against which to read the statute of
wills and in this way justified a new interpretation of that
statute" (Dworkin 1977, p. 29).
17

The positivist might respond that when the Riggs court

considered this principle, it was reaching beyond the law to
extralegal standards in the exercise of judicial discretion. But
Dworkin points out that the Riggs judges would "rightfully"
have been criticized had they failed to consider this
principle; if it were merely an extralegal standard, there
would be no rightful grounds to criticize a failure to consider
it (Dworkin 1977, p. 35). Accordingly, Dworkin concludes
that the best explanation for the propriety of such criticism is
that principles are part of the law.
Further, Dworkin maintains that the legal authority of
standards like the Riggs principle cannot derive from
promulgation in accordance with purely formal
requirements: "[e]ven though principles draw support from
the official acts of legal institutions, they do not have a
simple or direct enough connection with these acts to frame
that connection in terms of criteria specified by some
ultimate master rule of recognition" (Dworkin 1977, p. 41).
Unlike legal rules, legal principles lack a canonical form and
hence cannot be explained by formal promulgation.
On Dworkin's view, the legal authority of a binding principle
derives from the contribution it makes to the best moral
justification for a society's legal practices considered as a
whole. According to Dworkin, a legal principle maximally
contributes to such a justification if and only if it satisfies
two conditions: (1) the principle coheres with existing legal
materials; and (2) the principle is the most morally attractive
standard that satisfies (1). The correct legal principle is the
one that makes the law the moral best it can be. Thus,
Dworkin concludes, "if we treat principles as law we must
reject the positivists' first tenet, that the law of a community
is distinguished from other social standards by some test in
the form of a master rule" (Dworkin 1977, p. 44).
In response, positivists concede that there are legal
principles, but argue that their authority as law can be
18

explained in terms of the conventions contained in the rule

of recognition:
Legal principles, like other laws, can be enacted or repealed
by legislatures and administrative authorities. They can also
become legally binding through establishment by the courts.
Many legal systems recognize that both rules and principles
can be made into law or lose their status as law through
precedent (Raz 1972, p. 848).
According to this view, legal principles are like legal rules in
that both derive their authority under the rule of recognition
from the official acts of courts and legislatures. If the Riggs
principle that no person shall profit from her own wrong has
legal authority, it is because that principle was either
declared by a court in the course of adjudicating a dispute or
formally promulgated by the appropriate legislative body.
Further, inclusive positivists argue that Dworkin's account of
principles is itself consistent with the pedigree thesis. As
Hart puts it, "this interpretative test seems not to be an
alternative to a criterion provided by a rule of recognition,
but ... only a complex 'soft-positivist' form of such a criterion
identifying principles by their content not by their pedigree"
(Hart 1994, p. 263). The idea, familiar from Section II, is that
a rule of recognition can incorporate content-based
constraints on legal validity, even those rooted ultimately in
morality.
c. The Semantic Sting
In Law's Empire, Dworkin distinguishes two kinds of
disagreement legal practitioners can have about the law.
Lawyers can agree on the criteria a rule must satisfy to be
legally valid, but disagree on whether those criteria are
satisfied by a particular rule. For example, two lawyers might
agree that a rule is valid if enacted by the state legislature,
but disagree on whether the rule at issue was actually
enacted by the state legislature. Such disagreements are
empirical in nature and hence pose no theoretical difficulties
19

for positivism.
There is, however, a second kind of disagreement that
Dworkin believes is inconsistent with positivism. Lawyers
often agree on the facts about a rule's creation, but disagree
on whether those facts are sufficient to endow the rule with
legal authority. Such disagreement is considerably deeper
than empirical disagreement as it concerns the criteria for
legal validity-which, according to positivism, are exhausted
by the rule of recognition. Dworkin calls this second kind of
disagreement theoretical disagreement about the law.
Theoretical disagreement, on Dworkin's view, is inconsistent
with the pedigree thesis because the pedigree thesis explains
the concept of law in terms of shared criteria for creating,
changing and adjudicating law:
If legal argument is mainly or even partly about [the
properties that make a proposition legally valid], then
lawyers cannot all be using the same factual criteria for
deciding when propositions of law are true and false. Their
arguments would be mainly or partly about which criteria
they should use. So the project of the semantic theories, the
project of digging out shared rules from a careful study of
what lawyers say and do, would be doomed to fail (Dworkin
1986, p. 43).
If lawyers disagree about the criteria of legal validity, then
the grounds of legal validity cannot be exhausted by the
shared criteria contained in a rule of recognition. The
semantic sting, then, implies that there must be more to the
concept of legal validity than can be explained by
promulgation in accordance with shared criteria embodied in
a rule of recognition.
The semantic sting resembles one of Dworkin's earlier
criticisms of Hart's pedigree thesis. Hart believes that the
rule of recognition is a social rule and is hence constituted by
the conforming behavior of people who also accept the rule
as a ground for criticizing deviations. Like all social rules,
20

then, the rule of recognition has an external and internal

aspect. The external aspect of the rule of recognition consists
in general obedience to those rules satisfying its criteria of
validity; the internal aspect is constituted by its acceptance
as a public standard of official behavior. Hart believes it is
this double aspect of the rule of recognition that accounts for
its normativity and enables him to distinguish his theory
from Austin's view of law as a system of coercive commands.
For, as Hart points out, a purely coercive command can
oblige, but never obligate, a person to comply (see Section I,
supra).
Dworkin argues that this feature of Hart's theory commits
him to the claim that there cannot be any disagreement
about the content of rule of recognition:
Hart's qualification ... that the rule of recognition may be
uncertain at particular points ... undermines [his theory].... If
judges are in fact divided about what they must do if a
subsequent Parliament tries to repeal an entrenched rule,
then it is not uncertain whether any social rule [of
recognition] governs that decision; on the contrary, it is
certain that none does (Dworkin 1977, pp. 61-62).
On Dworkin's view, the requirements of a social rule cannot
be uncertain since a social rule is constituted by acceptance
and conforming behavior by most people in the relevant
group: "two people whose rules differ ... cannot be appealing
to the same social rule, and at least one of them cannot be
appealing to any social rule at all" (Dworkin 1977, p. 55).
Jules Coleman responds that if the rule of recognition is a
social rule, then Hart's view implies there must be general
agreement among the officials of a legal system about what
standards constitute the rule of recognition, but it does not
imply there cannot be disagreement as to what those
standards require in any given instance:
The controversy among judges does not arise over the
content of the rule of recognition itself. It arises over which
21

norms satisfy the standards set forth in it. The divergence in

behavior among officials as exemplified in their identifying
different standards as legal ones does not establish their
failure to accept the same rule of recognition. On the
contrary, judges accept the same truth conditions for
propositions of law.... They disagree about which
propositions satisfy those conditions (Coleman 1982, p. 156).
Coleman, then, distinguishes two kinds of disagreement
practitioners can have about the rule of recognition: (1)
disagreement about what standards constitute the rule of
recognition; and (2) disagreement about what propositions
satisfy those standards. On Coleman's view, Hart's analysis
of social rules implies only that (1) is impossible.
Under the U.S. rule of recognition, for example, a federal
statute is legally valid if and only if it has been enacted in
accordance with the procedural requirements described in
the body of the Constitution and is consistent with the first
fourteen amendments. Since, on Hart's view, the U.S. rule of
recognition is a social rule, U.S. officials must agree on the
procedures the federal government must follow in enacting
law, the set of sentences constituting the first fourteen
amendments, and the requirement that federal enactments
be consistent with those amendments.
But Hart's view of social rules does not imply there cannot be
any disagreement about whether a given enactment is
consistent with the first fourteen amendments. Legal
practitioners can and do disagree on what Hart calls
penumbral (or borderline) issues regarding the various
amendments. While every competent practitioner in the U.S.
would agree, for example, that torturing a person to induce a
confession violates the fifth amendment right against selfincrimination, there is considerable disagreement about
whether compelling a defendant to undergo a psychiatric
examination for the purpose of increasing her sentence also
violates that right. On Coleman's view, there is nothing in
22

Hart's analysis of social rules that precludes such borderline

disagreements about whether a practice is consistent with
the Fifth Amendment.
Despite its resemblance to this earlier criticism, Dworkin's
semantic sting argument takes aim at a deeper target. The
semantic sting targets all so-called semantic theories of law
that articulate the concept of law in terms of "shared rules ...
that set out criteria that supply the word's meaning"
(Dworkin 1986, p. 31). Thus, while the earlier criticism is
directed at Hart's extraneous account of social rules, the
semantic sting is directed at what Dworkin takes to be the
very heart of positivism's theoretical core, namely, the claim
that there are shared criteria that exhaust the conditions for
the correct application of the concept of law.
At the root of the problem with semantic theories, on
Dworkin's view, is a flawed theory of what makes
disagreement possible. According to Dworkin, semantic
theories mistakenly assume that meaningful disagreement is
impossible unless "we all accept and follow the same criteria
for deciding when our claims are sound, even if we cannot
state exactly, as a philosopher might hope to do, what these
criteria are" (Dworkin 1986, p. 45). On this flawed
assumption, two people whose concepts of law differ cannot
be disagreeing about the same thing.
Perhaps with Coleman's response to his earlier criticism in
mind, Dworkin concedes that semantic theories are
consistent with theoretical disagreements about borderline
or penumbral cases: "people do sometimes speak at crosspurposes in the way the borderline defense describes"
(Dworkin 1986, p. 41). But Dworkin denies semantic theories
are consistent with theoretical disagreement about pivotal
(or core) cases. According to semantic theories, he says,
[Y]ou and I can sensibly discuss how many books I have on
my shelf, for example, only if we both agree, at least roughly,
about what a book is. We can disagree over borderline cases:
23

I may call something a slim book that you would call a

pamphlet. But we cannot disagree over what I called pivotal
cases. If you do not count my copy of Moby-Dick as a book
because in your view novels are not books, any disagreement
is bound to be senseless (Dworkin 1986, p. 45).
The problem, on Dworkin's view, is that many difficult
appellate cases like Riggs involve theoretical disagreement
about pivotal cases:
The various judges who argued about our sample cases did
not think they were defending marginal or borderline claims.
Their disagreements about legislation and precedent were
fundamental; their arguments showed that they disagreed
not only about whether Elmer should have his inheritance,
but about why any legislative act, even traffic codes and rates
of taxation, impose the rights and obligations everyone
agrees they do.... They disagreed about what makes a
proposition of law true not just at the margin but in the core
as well (Dworkin 1986, pp. 42-43).
On Dworkin's view, the judges in Riggs were not having a
borderline dispute about some accepted criterion for the
application of the concept of law. Rather, they were having a
disagreement about the status of some putatively
fundamental criterion itself: the majority believed, while the
dissent denied, that courts have power to modify
unambiguous legislative enactments.
Accordingly, theoretical disagreement about pivotal cases
like Riggs is inconsistent with semantic theories of law, on
Dworkin's view, because it shows that shared criteria do not
exhaust the proper conditions for the application of the
concept of law. For the majority and dissenting judges in
Riggs were having a sensible disagreement about law even
though it centered on a pivotal case involving the criteria of
legal validity. Thus, Dworkin concludes, the concept of law
cannot be explained by so-called criterial semantics.
In response, Hart denies both that his theory is a semantic
24

theory and that it assumes such an account of what makes

disagreement possible:
[N]othing in my book or in anything else I have written
supports [a semantic account] of my theory. Thus, my
doctrine that developed municipal legal systems contain a
rule of recognition specifying the criteria for the
identification of the laws which courts have to apply may be
mistaken, but I nowhere base this doctrine on the mistaken
idea that it is part of the meaning of the word 'law' that there
should be such a rule of recognition in all legal systems, or
on the even more mistaken idea that if the criteria for the
identification of the grounds of law were not
uncontroversially fixed, 'law' would mean different things to
different people (Hart 1994, p. 246).
Instead, Hart argues that his theory of law is "a descriptive
account of the distinctive features of law in general as a
complex social phenomenon" (Hart 1994, p. 246). Hart
presents his theory, not as an account of how people apply
the concept of law, but rather as an account of what
distinguishes systems of law from other systems of social
rules. On Hart's view, it is the presence of a rule of
recognition establishing criteria of validity that distinguishes
law from other systems of social rules. Thus, according to
Hart, Dworkin's criticism fails because it mischaracterizes
positivism as providing a criterial explanation of the concept
of law.
5. References and Further Reading
6 Austin, John, Lectures on Jurisprudence and the
Philosophy of Positive Law (St. Clair Shores, MI:
Scholarly Press, 1977)
7 Austin, John, The Province of Jurisprudence
Determined (Cambridge: Cambridge University Press,
1995)

25

8 Bentham, Jeremy, Of Laws In General (London:

Athlone Press, 1970)
9 Blackstone, William, Commentaries on the Law of
England (Chicago: The University of Chicago Press,
1979)
10 Coleman, Jules, "Negative and Positive Positivism," 11
Journal of Legal Studies 139 (1982)
11 Dworkin, Ronald M., Law's Empire (Cambridge:
Harvard University Press, 1986)
12 Dworkin, Ronald M., Taking Rights Seriously
(Cambridge: Harvard University Press, 1977)
13 Finnis, John, Natural Law and Natural Rights
(Oxford: Clarendon Press, 1980)
14 Fuller, Lon L., The Morality of Law, Revised Edition
(New Haven: Yale University Press, 1969)
15 Fuller, Lon L., "Positivism and Fidelity to Law--A Reply
to Professor Hart," 71 Harvard Law Review 630 (1958)
16 Faber, Klaus, "Farewell to 'Legal Positivism': The
Separation Thesis Unraveling," in George, Robert P.,
The Autonomy of Law: Essays on Legal Positivism
(Oxford: Clarendon Press, 1996), 119-162
17 George, Robert P., "Natural Law and Positive Law," in
George, Robert P., The Autonomy of Law: Essays on
Legal Positivism (Oxford: Clarendon Press, 1996), 321334
18 Hart, H.L.A., The Concept of Law, Second Edition
(Oxford: Clarendon Press, 1994)
19 Hart, H.L.A., "American Jurisprudence through English
Eyes: The Nightmare and the Noble Dream," reprinted
in Hart, H.L.A., Essays in Jurisprudence and
Philosophy (Oxford: Clarendon Press, 1983), 123-144.
20
Hart, H.L.A., "Book Review of The Morality of
Law" 78 Harvard Law Review 1281 (1965)
21 Hart, H.L.A., Essays on Bentham (Oxford: Clarendon
Press, 1982)
26

22Hart, H.L.A., "Positivism and the Separation of Law and

Morals," 71 Harvard Law Review 593 (1958)
23Himma, Kenneth E., "Judicial Discretion and the
Concept of Law," forthcoming in Oxford Journal of
Legal Studies vol. 18, no. 1 (1999)
24Mackie, J.L., "The Third Theory of Law," Philosophy &
Public Affairs, vol. 7, no. 1 (Fall 1977)
25 Moore, Michael, "Law as a Functional Kind," in George,
Robert P. (ed.), Natural Law Theory: Contemporary
Essays (Oxford: Clarendon Press, 1992), 188-242
26Raz, Joseph, The Authority of Law: Essays on Law and
Morality (Oxford: Clarendon Press, 1979)
27 Raz, Joseph, "Authority, Law and Morality," The
Monist, vol. 68, 295-324
28
Raz, Joseph, "Legal Principles and the Limits of
Law," 81 Yale Law Review 823 (1972)
29Raz, Joseph, "Two Views of the Nature of the Theory of
Law: A Partial Comparison," Legal Theory, vol. 4, no. 3
(September 1998), 249-282
30
Waluchow, W.J., Inclusive Legal Positivism
(Oxford: Clarendon Press, 1994)
Author Information
Kenneth Einar Himma
Email: himma@spu.edu
Seattle Pacific University
U. S. A.

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