S Schapiro

Legal Theory, 6 (2000), 127170. Printed in the United States of America Copyright Cambridge University Press 13523252/00 $9.
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SCOTT J. SHAPIRO Law, Morality, and the Guidance of Conduct
LAW, MORALITY, AND THE GUIDANCE OF CONDUCT

Scott J. Shapiro* Yeshiva University
Legal positivism is generally characterized by its commitment to two theses one negative, the other positive.1 The negative thesis, usually referred to as the Separability Thesis, denies any necessary connection between morality and legality. Legal positivists do not require that a norm possess any desirable, or lack any undesirable, moral attributes in order to count as law.
Separability Thesis: There is some possible legal system where the legality of a norm does not depend on any of its moral properties.
The positive commitment, sometimes known as the Social Fact Thesis, holds that the existence of legal systems and legal rules are ultimately determined by certain facts about social groups.
Social Fact Thesis: All legal facts are ultimately determined by social facts.
The very label legal positivism reflects these core commitments. Legal positivism is the doctrine that recognizes positive law as distinct from natural law, such that a legal rule may exist even though it is inconsistent with the demands of morality. Moreover, the theory treats the law as something that must be posited through some social act or activity, either by enactment, decision, or practice. Although these theses are hardly precise, they do possess sufficient content to distinguish legal positivism from certain other theories. For example, legal positivism so characterized is inconsistent with any account that requires consistency with morality to be a condition of legality in every legal system. Natural law theories, such as those traditionally associated with Aquinas or Blackstone, would thus violate the Separability Thesis. It is also clear that legal positivism is inconsistent with any theory that
*Associate Professor of Law, Benjamin N. Cardozo School of Law. I would like to thank Ken Himma, Matthew Kramer, and Wil Waluchow for their very thoughtful responses to the arguments set out in Scott J. Shapiro, On Harts Way Out, 4 LEGAL THEORY 469 (1998). As usual, thanks are due to Jules Coleman and Peter Hilal for their wise counsel. 1. See, e.g., Jules Coleman, Negative and Positive Positivism, J. LEGAL STUD. 139 (1982), reprinted in Jules L. Coleman, MARKETS, MORALS AND THE LAW 3 (1988).
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affirms the existence of legal rules in the absence of some underwriting social facts. Consider, for example, theories that claim that the Common Law exists independently of judicial practice. To recognize as law this brooding omnipresence in the sky,2 as Holmes mockingly referred to it, would violate the Social Fact Thesis. In recent discussions, many have wondered whether legal positivism can permit moral appropriateness to be a possible condition of legality. Let us say that in some legal system judges took themselves to be legally obligated to look to morality in order to decide some or all cases that came before them. Could a legal positivist accept that moral rules were also legal rules of that system, even though no official body had posited them? Would such a practice of referring to morality be enough to satisfy the Social Fact Thesis? This issue came to the fore in the wake of Dworkins famous critique of Hart.3 Dworkin had argued that, in Anglo-American legal systems, judges are legally obligated to look to morality in order to decide certain cases that are brought before them. If legal positivism denied that morality could play a role in the determination of legality, then legal positivism would be unable to account for the existence of large parts of Anglo-American law. Dworkin believed that legal positivism could not permit morality to be utilized in this fashion. Hence, he concluded that legal positivism was fatally flawed. Many legal positivists sought to deflect Dworkins attack by arguing that, even if such a judicial practice did exist, its existence would count as a social fact sufficient to ground the existence of law. Jules Coleman, for example, argued that the Social Fact Thesis should be understood as claiming that the possibility of law depends on the existence of a convention among judges to recognize certain rules that bear certain characteristics as binding.4 The Social Fact Thesis did not require that every legal rule have a social sourceit merely required that the rule that set out the criteria of legality be a social rule. Legal positivisms commitment to social facts could be satisfied, in other words, merely by the existence of what Hart termed a rule of recognition. Coleman has since called this the Conventionality Thesis.5
Conventionality Thesis: Every legal system contains a conventional rule that imposes a duty on courts to evaluate conduct in light of rules that bear certain characteristics.
By interpreting the Social Fact Thesis in terms of the Conventionality Thesis, Coleman sought to establish the viability of what has been called inclusive legal positivism.
2. Southern Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917). 3. See Ronald Dworkin, The Model of Rules I, in TAKING RIGHTS SERIOUSLY 14 (1977). For an extensive discussion of the Hart/Dworkin debate, see Scott J. Shapiro, On Harts Way Out, 4 LEGAL THEORY 469, 47789 (1998). 4. Jules Coleman, Negative and Positive Positivism, supra note 1. 5. See Jules Coleman, Incorporationism, Conventionality, and the Practical Difference Thesis, 4 LEGAL THEORY 381 (1998).
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Inclusive Legal Positivism: There is some possible legal system where the legality of a norm does depend on some of its moral properties.
If legal positivisms commitment to social facts were cashed out by the Conventionality Thesis, then there would be no bar to treating morality as a possible condition of legality. As long as the moral test of legality were set out in a social rule, the Social Fact Thesis would be satisfied. In the Postscript to The Concept of Law, Hart opted for this solution to Dworkins challenge.6 Hart agreed with Dworkin that judges are often legally obligated to apply moral principles that lack social sources, and that when judges act on them, they are applying existing law. However, Hart believed that such a position was consistent with legal positivism, for he saw no reason why the rule of recognition could not validate a norm based on its moral properties. Legal positivists, according to Hart, claim only that a rule of recognition need not validate a norm based on its moral content, not that it could not. The connection with social facts is established simply by requiring the rule of recognition to be a conventional rule. In a recent article in this Journal, I argued that interpreting the Social Fact Thesis in terms of the Conventionality Thesis is insufficient to establish the viability of inclusive legal positivism and hence to save Hart from Dworkins critique.7 The Conventionality Thesis, coupled with inclusive legal positivism, turns out to be inconsistent with another core commitment of Harts positivism, which might be called the Practical Difference Thesis.
Practical Difference Thesis: Legal rules must in principle be capable of securing conformity by making a difference to an agents practical reasoning.
As I argued, an inclusive legal positivist cannot believe that in every legal system the rule of recognition is a social rule and at the same time that legal rules must in principle be capable of making practical differences. The argument I offered did not demonstrate that inclusive legal positivism is incoherent, nor was it meant to. It simply purported to show that certain versions of inclusive legal positivism are incoherent, namely, those that also embrace the Conventionality and Practical Difference Theses. It should be noted that not every legal positivist subscribes to both of these theses. Joseph Raz, for example, rejects the Conventionality Thesis,8 although he accepts the Practical Difference Thesis. Jules Coleman accepts the Conventionality Thesis, but denies the Practical Difference Thesis. The argument I offered, therefore, does not affect Colemans version of inclu6. See H.L.A. Hart, THE CONCEPT OF LAW 249 (Penelope A. Bullock & Joseph Raz eds., 2d ed. 1994). 7. See Shapiro, supra note 3. 8. See Joseph Raz, THE CONCEPT OF A LEGAL SYSTEM, 200 (2d ed. 1980). Needless to say, Raz also rejects inclusive legal positivism.
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sive legal positivism given that he does not accept every member of the inconsistent trio. Unfortunately for Hart, he did hold all three theses. He believed that every legal system had a social rule of recognition, that such a rule of recognition can make morality a condition of legality, and that legal rules must be capable of making practical difference. Consequently, I argued, Hart must give up one of these claims. Because the Conventionality and Practical Difference Theses are more central to his theory of law, I argued that Hart should abandon inclusive legal positivism. Several inclusive legal positivists have responded to this argument.9 Some have argued that I have misinterpreted Hart and attributed to him theses he did not hold. Others have claimed that I have interpreted Hart correctly, but the version of inclusive legal positivism held by Hart and attacked by me is not the only form of inclusive legal positivism, and, indeed, is a particularly implausible one. They claim that other arguments I presented fail to impugn more plausible forms of the theory. Finally, some have argued that even if I have interpreted Hart correctly, the arguments I offered are not sound. In this paper, I consider these responses. Although I am not ultimately persuaded by their replies, I do think that the concerns they express are important ones and ought to be addressed. I should also say that I am especially grateful to these critics, not only because they flatter me by their attention, but also because I have learned a great deal about my argument, and legal positivism in general, simply by trying to answer the criticisms they raise. Replying will also enable me to clarify parts of my argument and fill in some gaps that I now see need clarifying and filling. I begin my reply by detailing the main argument I presented against inclusive legal positivism. This argument aims to show that legal rules that lack social sources are unable to guide the behavior of judges when deciding cases. I then consider Ken Himmas extensive reply to this argument and attempt to meet his impressive defense of Hart. In the third section, I show how to extend the main argument to cover the case of the ordinary citizen. This argument purports to show that rules that lack social sources cannot guide the conduct of ordinary citizens in the way that legal rules are supposed to guide them. I then consider Wil Waluchows and Jules Colemans replies. Although I argue that Waluchows argument misses the mark, I agree with Coleman that the proof I presented was incomplete. I then suggest a way to bridge the gap. In the fifth section, I consider Matthew Kramers own argument against a form of inclusive legal positivism. Although I am sympathetic to Kramers rejection of some forms of inclusive legal positivism, I argue that his style of
9. See Kenneth Himma, H.L.A. Hart and the Practical Difference Thesis, 6 LEGAL THEORY 143 (2000); Will Waluchow, Authority and the Practical Difference Thesis, 6 LEGAL THEORY 4581(2000); Matthew Kramer, How Moral Principles Can Enter Into the Law, 6 LEGAL THEORY 83108(2000).
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argument, in contrast to my own, has the wrong logical form. I then explain why I think his critique of my argument is unsuccessful. In the first five sections, I consider forms of inclusive legal positivism that I believe to be the most important versions of the theory, that is, ones that permit morality to be a sufficient condition of legality. In the sixth section, I argue that the version of inclusive legal positivism that relegates morality to a possible necessary condition of legality is also unable to account for the guidance function of the law. I then discuss Kramers attempt to extricate Hart from this difficulty and suggest that his defense is based on a conflation of Harts with Razs theory of rules. In the eighth section, I defend the claim I made at the end of my article that Harts commitment to the Practical Difference Thesis is predicated on a more fundamental jurisprudential commitment, namely, to a functionalist conception of law.10 I conclude by suggesting that the best way for the inclusive legal positivist to maintain his position is by rejecting the functionalist framework. I. THE ARGUMENTPART ONE Imagine a theory of law, called legal skepticism, that claims law is essentially unknowable. Legal skeptics do not deny the existence of law. They accept that legal systems may exist and that, if they do, their content may be wholly determinate. Legal skeptics maintain, however, that the existence of legal systems and their contents cannot be known by human beings. There may be a fact of the matter, for example, whether Roe v. Wade was correctly decidedunfortunately, no one will ever know. Legal skepticism is an absurd doctrine. It is absurd because the law cannot be the sort of thing that is unknowable. If a system of norms were unknowable, then that system would not be a legal system. One important reason why the law must be knowable is that its function is to guide conduct. Legal institutions exist in order to secure compliance through the provision of rules. If its rules were in principle unknowable, then these rules could not possibly guide conduct. And if these rules could not possibly guide conduct, then they could not be legal rules. I believe that Harts version of inclusive legal positivism suffers a similar fate as that of legal skepticism, although in a much less obvious and dramatic way: Rules that are valid solely in virtue of their content cannot possibly guide conduct. The argument that I shall present has two parts. The first part attempts to show that such rules cannot guide the conduct of judges. The second part extends this result to everyone else. Before I present these arguments, however, I would like to be more explicit about certain assumptions that I will make in understanding the Practical Difference Thesis. According to the Practical Difference Thesis,
10. Shapiro, supra note 3, at 5025.
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legal rules must in principle be capable of securing conformity by making a practical difference. What exactly does it mean to make a practical difference? As a first approximation, we can say that a rule makes a practical difference when it motivates an agent to act in a way that he might not have acted had he not appealed to the rule in his practical reasoning. A rule is capable of making a practical difference, therefore, when it is capable of motivating an agent to act in a way that he might not have acted had he not appealed to the rule. In order to evaluate whether a rule is capable of making a practical difference, we begin by considering cases where an agent conforms to a rule as a result of appealing to it in his practical reasoning. We then engage in the following thought experiment: We consider what the world would have been like had the agent not appealed to the rule in his practical reasoning.11 If the agent might not have conformed to the rule, then we say that the rule does make a practical difference for him, and therefore, is capable of making a practical difference. If, however, the agent would have conformed to the rule even if he had not appealed to it, then we say that the rule is not capable of making a practical difference for that agent. If the rule is not capable of making a practical difference for any agent, then we can say that the rule is not capable of making a practical difference simpliciter. The above procedure for determining whether a rule makes a practical difference is useful for many cases of rule-guided behavior and is the test that I used in my previous article. I now think that a slightly more nuanced test is needed. The complication is that an agent can appeal to a rule under several different descriptions. She might, for example, appeal to a rule because the rule is a moral rule, although the rule is also a legal rule. It is possible that the rule may make a practical difference as a moral rule, but not as a legal rule. In order to determine, therefore, whether a legal rule makes a difference qua legal rule, it will not be enough to ask whether the agent might not have conformed if that agent had not appealed to the rule. We will ask whether the agent might not have conformed if that agent had not appealed to the rule as a legal rule. If the agent might not have conformed to such a rule if the appeal is not made under that description, then we will say that the rule did make a difference to the agents practical reasoning as a legal rule. Having said something about what constitutes a practical difference, let me say a brief word about the notion of rule-conformity. In this paper, I will take a slightly broader view of rule-conformity than is usual. According to the customary definition, rule-conformity is only defined for rule-address11. Because we want this thought experiment to be a controlled one, we must make sure to hold as fixed as possible the set of reasons that the agent believes he has for conforming or not conforming. For if some of the reasons change in the suppositional scenario and the agent does not conform, we will not know whether it was the absence of the rule or the other reason that made the difference.
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ees. An agent who is addressed by the rule conforms to the rule just in case his conduct is in accordance with its content. Judges conform to legal rules on this account only when they act in accordance with rules addressed solely to them (e.g., when they empanel juries at the beginning of trials, sentence murderers to life imprisonment, do not take bribes, etc.) However, there is a sense in which we can speak of judges conforming to rules that are not directed at them, namely, when they are charged with applying rules to others to whom they are addressed. A judge conforms to such a rule just in case he correctly evaluates conduct in a manner specified by the rule. If a rule prohibits jaywalking, a judge conforms to that rule just in case she finds that jaywalkers have, and that nonjaywalkers have not, engaged in wrongful conduct. We can say that, according to the Practical Difference Thesis, every legal rule must in principle be capable of performing a dual role. First, a legal rule is supposed to motivate the norm-addressee to act in ways that he might not have acted had he not appealed to the rule in his practical reasoning. Second, a legal rule is supposed to motivate an evaluator to evaluate conduct of norm-addresses in a way that she might not have done had she not appealed to the rule in her evaluations. The function of a no-jaywalking rule, therefore, is to get people not to jaywalk, as well as to get judges to evaluate jaywalking as wrongful behavior. Now the argument. Consider a legal system in which judges are guided by an inclusive rule of recognition, i.e., by a rule that requires judges to evaluate conduct in accordance with norms that are morally acceptable irrespective of whether these norms have social origins. Further, consider cases in which a judge is guided by an inclusive rule of recognition and correctly evaluates conduct in light of moral rules that lack social sources. To test whether such moral rules can guide conduct, we should ask whether this judge might have acted differently had he not appealed to such rules as legal rules in his practical reasoning. We thus pose the following counterfactual question: If the judge had not appealed to those moral norms as legal norms in his deliberations, would he have been motivated to conform to those norms anyway in his evaluations? The answer to this question appears to be yes. Because the rule of recognition will require the judge to evaluate conduct in accordance with rules that are morally appropriate, his evaluative practices will conform to the moral norms regardless of whether he directly appealed to these norms themselves as legal rules. This shows that moral norms that lack pedigrees cannot make practical differences to judges, because a judge would always conform to those rules regardless of whether he appealed to them as legal rules or not, provided, of course, he guides his conduct by an inclusive rule of recognition. Such an argument will not work for rules that are valid in virtue of their social source. To see this, consider cases in which a judge is guided by an exclusive rule of recognition, i.e., by a rule that require judges to evaluate conduct in accordance with norms that possess the appropriate social
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pedigree. Further, assume that a judge has successfully evaluated conduct in light of rules that have emanated from the appropriate social sources. We now pose the same counterfactual question we did before: If the judge were guided by the exclusive rule of recognition, but did not appeal to these norms as legal norms in his deliberations, would he have been motivated to conform to those norms anyway in his evaluations? The answer to this question is maybe not. Consider those counter-to-fact situations in which the rules in question are repealed or have never been enacted. In such cases, the judge might no longer be motivated to evaluate conduct in light of such rules, because they no longer possess the appropriate social pedigree. This difference in motivation obtains even though the judge is guided by the same rule of recognition, that is, he is still motivated to evaluate conduct in light of all the rules that have the right social pedigree. Legal rules that are valid in virtue of their social source, therefore, are capable of making practical differences because such rules are capable of motivating agents to act in ways that they might not have acted had they not appealed to these rules in practical reasoning. This argument demonstrates that legal positivists, like Hart, who subscribe to the Conventionality and Practical Difference Theses cannot be inclusive legal positivists. For if judges are guided by an inclusive rule of recognition, then they cannot be guided by any of the rules supposedly validated by it given that such rules cannot make a difference to the practical reasoning of judges. Exclusive legal positivism remains the only option for legal positivists who believe that every legal system contains a social rule of recognition and that every legal rule must in principle be capable of securing conformity by making a practical difference. II. RESPONSES TO ARGUMENTPART ONE In his article Hart and the Practical Difference Thesis, Ken Himma responded to the above argument on Harts behalf.12 Because Himmas article is so chockablock with criticisms of my approach, I have taken the liberty of selecting what I consider to be his central arguments. They are:
(1) My argument against inclusive legal positivism presupposes a certain conception of rule-guided behavior and is effective only if such a conception is presupposed. Since legal positivism is agnostic concerning the correct theory of rules, Hart can escape the difficulties by adopting a different account of rule-guided behavior. (2) My argument in favor of exclusive legal positivism presupposes that legal, as opposed to moral, systems are thoroughly dynamic. However, according to Harts account of the minimum content of natural law, certain rules necessarily exist, thereby rendering parts of legal systems static. Moreover, accord12. Himma, supra note 9.
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(3)
(4)
(5)
(6)
ing to certain conceptions of morality, moral systems are thoroughly dynamic. My argument presupposes that Hart subscribed to the Simultaneous Guidance Thesis, which holds that it must be possible for judges to guide their conduct both by primary and secondary rules at the same time. However, there is no reason to attribute to Hart such a view. My argument presupposes that the function of legal rules is to guide normevaluators when deciding cases, whereas for Hart their function is to guide norm-addressees when deciding whether they ought to conform to the contents of the rules. My argument presupposes that judges will be motivated by primary legal rules, whereas Hart required only that they be motivated by the secondary rules. My argument presupposes that Hart subscribed to the Practical Difference Thesis, but there is no reason to attribute this position to him. Moreover, nothing in his Functionalist theory commits him to such a view.
I discuss the first four issues in the subsections that follow.13 Due to expositional difficulties, I respond to the fifth charge in footnote 74. I defer discussion of the last challenge to the end of this paper. A. Counterfactuals and Rule-Guidance Himma spends a considerable amount of space in his article attempting to show that the counterfactual inference that I drew is fallacious. He represents my argument as follows (let M name a moral rule that lacks a pedigree):14
(1) A rule R guides a person P to do an action A if and only if P would not have done A if R had not been a rule; (2) It is not possible that M is not a rule; (3) Therefore, it is not the case that M guides P to do A.
Himma points out that (3) does not follow from (1) and (2). Indeed, the negation of (3) follows. As he explains, under the LewisStalnaker semantics for counterfactuals, the right-hand side of (1) will be true just in case the most similar worlds to the actual world15 where R is not a rule are also worlds where P does not do A. However, from (2) it follows that every world is a world where R is a rule. Hence, it is trivially true that all worlds where R is not a rule is also a world where P does not do A, precisely because there are no such worlds. If the right-hand side of (1) is true, the negation of (3) must be true.
13. I have made every effort to keep each section as self-contained as possible. In this way, the reader may skip discussions that are not of interest. 14. Himma, supra note 9, at 16. 15. For the sake of simplicity, I am presupposing the Limit Assumption. See David Lewis, COUNTERFACTUALS 1921 (1973).
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Himma is certainly right about this result. Unfortunately, this argument bears little resemblance to my argument. Himma presents (1)16 as a characterization of the concept of rule-guidance that I claim Hart must accept. However, not only did I not claim that Hart accepts, or should accept, such an account, it is clear that no one could possibly accept it. In order for an agent to be guided by a rule it is at least necessary for the agent generally to conform to the rule when it applies. (1) does not require conformity. According to (1), the serial killer is being guided by the rule against murder, for if murder had been morally permissible (whatever that may mean), he would still have gone about killing people. If anything, (1) should properly be seen as imposing a practical difference requirement on rule-guidance; i.e., an agent is guided by R only if the rule makes a practical difference. The right-hand side of (1) would then be seen as setting out a possible characterization of the concept of a practical difference; i.e., a rule R makes a practical difference only if R would not have conformed to R if R had not been a rule. Even conceived as a characterization of the concept of a practical difference, (1) is significantly different from the characterization I employ. According to my account, a legal rule makes a practical difference when an agent might not have conformed to the rule had he not appealed to the rule as a legal rule:17
(4) A legal rule R guides a person P to do A only if P might not have done A if he had not appealed to R as a legal rule.
(4) differs from (1) in three respects. First, (4) merely imposes a necessary condition on rule-guidance, not a necessary and sufficient condition. Second, (4) is a might-counterfactual. It does not require that an agent would not have conformed to R if he did not appeal to Rit only requires that the agent might not have conformed. This makes a considerable difference. If one were to substitute might for the would in (1), (3) is in fact true. I will not trouble the reader with the proof.18 It does not matter anyway because (4) is not, in fact, the might-counterpart of the necessary condition
16. Himma refers to it as (MG2). Himma, supra note 9, at 21. 17. As I mentioned in Section I, this is not the characterization of practical difference that I offered in the original article. According to that characterization, a legal rule R guides a person P to do A only if P might not have done A if he had not appealed to R. The three differences mentioned in the text between (4) and (1), however, apply, mutatis mutandis, to this older characterization as well. 18. According to the LewisStalnaker semantics, might-counterfactuals bear the same relation to would-counterfactuals as possibility bears to necessity, i.e., that of duality. Just as It is possible that B is equivalent to It is not the case that it is necessary that not-B, If B were the case, then C might be the case is equivalent to It is not the case that if B were the case, then not-C would be the case. A might-conditional is true just in case some of the closest worlds to the actual world where the antecedent is true is also a world where the consequent is true. If there are no words where R is not a rule, then it trivially follows that P might not have done A if R had not been a rule is false. Hence, (3) is true.
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version of (1), for (4) differs from (1) in a third respect. (4) does not require that an agent might not conform to R if R were not a rule. It merely requires that he might not conform if he did not appeal to the rule as a legal rule. According to (4), it is entirely possible for a rule to make a practical difference, and for it to guide conduct, even if it were impossible for the rule not to be a rule. All we have to imagine is that the agent does not appeal to R as a legal rule and ask whether that agent will conform. If, in some of the most similar situations where the agent fails to appeal to R, he does not conform to the rule, then we can say that the rule is capable of making a practical difference. Himma knows that (4) differs from (1) in this respect. And he knows that, given the conception of rule-guidance I actually presented, the argument is valid. Why then does he bother to present an invalid argument only to show that it is invalid? Himmas point is that (3) does not follow if a different conception of rule-guidance is presupposed, namely, the one expressed by (1). And if the argument I offered is not robust across conceptions of rule-guidance, it is always open to Hart and the inclusive legal positivist to save the theory by swapping conceptions.19 I do not think that Himma is suggesting that any conception of ruleguided behavior would be acceptable to the positivist. For one can imagine some conceptions that would clearly be unacceptable. For example, if one thought that a rule is capable of making a practical difference only if that rule were a moral reason to act, then it would follow that no legal rule could be capable of guiding conduct unless it were a moral reason to act, and hence no rule could be a legal rule unless it were a moral reason to act. Himma would certainly agree that this conception is ruled out by positivistic strictures. His point, I take it, is that a great variety are admissible, and hence the inclusive legal positivist may help himself to any of them to get out of difficulties. However, selecting the appropriate conception of rule-guided behavior is not like picking the right pair of socks to go with ones shoes. The positivist is committed to subscribing to the conception of rule-guided behavior that is correct, or at least that is as correct as all others. And it seems to me that (1) does not provide for an adequate account of practical difference. How, for example, do we determine under (1) whether an agent is being guided by a moral rule? Consider the rule against murder. According to (1), John is being guided by the rule against murder only if he would kill someone if there were no such rule. To evaluate this counterfactual, we would have to imagine the most similar possible worlds to the actual world where murder is permissible and see whether John kills in that world. But what does a possible world look like where murder is permissible? Personally, I have trouble conceiving of such possibilities. But even if I could, such imaginative
19. Himma, supra note 9, at 2123.
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leaps are obviously not required in order for me to evaluate the question of whether John is guided by the rule against murder. Lastly, it is not even true that the conception of rule-guidance that Himma suggests will save Hart. Himma makes this mistake because he misrepresents the logical form of my argument. My argument can be represented as follows:
(5) If P is guided by an inclusive rule of recognition, then P will be guided by M only if P might not have conformed to M if P had not appealed to M as a legal rule but continued to be guided by the inclusive rule of recognition;20 (6) Necessarily, if P is guided by an inclusive rule of recognition, then P conforms to M; (7) Therefore, if P is guided by an inclusive rule of recognition, then P will not be guided by M.
According to (6), every world where P is guided by an inclusive rule of recognition is a world where P conforms to M. A fortiori, every world where P is guided by an inclusive rule of recognition and does not appeal to M as a legal rule is a world where P conforms to M. A fortiori, the most similar worlds to the actual world where P is guided by an inclusive rule of recognition and P does not appeal to M as a legal rule are all worlds where P conforms to M. Hence, if (6) is true, (8) is true.
(8) P would have conformed to M, if P had not appealed to M as a legal rule but continued to be guided by an inclusive rule of recognition.
Taking the contrapositive of the consequent of (5) gives us:

(9) If P is guided by an inclusive rule of recognition, then if [P would have conformed to M, if P had not appealed to M as a legal rule but continued to be guided by an inclusive rule of recognition], then P will not be guided by M.
Since (8) appears between the brackets in (9), (7) follows trivially. Notice that (7) follows even if we use something like Himmas (1) as the first premise in the argument. The proof is invariant with respect to the antecedent of the consequent counterfactual conditional. Himmas suggestion that the inclusive legal positivist adopt (1) as his characterization of rule-guidance is, therefore, no solution.
20. The last clause but continued to be guided by the inclusive rule of recognition is added to ensure that the most similar worlds to the actual world where P does not recognize that M applies are also worlds where P is guided by the inclusive rule of recognition. This cannot be guaranteed simply by assuming the antecedent of (5) true. It is only by considering worlds where P does not appeal to M as a legal rule and is also guided by an inclusive rule of recognition that we can determine whether M makes a difference as a legal rule over and above the difference that the rule of recognition makes.

B. Static and Dynamic
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The inclusive part of an inclusive rule of recognition is staticthe set of actions that it is capable of motivating is fixed. If some course of conduct under some set of conditions is morally wrong, then a judge required to evaluate such conduct in accordance with the principles of morality would be legally obligated to declare such conduct wrong under these conditions. This outcome can never change. The static nature of an exclusive rule of recognition is a reflection of the static nature of morality.21 Moral rules do not go in and out of existence. If, at some time, some rule is morally valid, then it is always morally valid. Morality, thus, contrasts starkly with law. Legal systems are dynamic insofar as their identities can be, and normally are, preserved through various transformations of their content. Legal codes may change, but moral codes may not.22 Premise (6) attempts to capture the static quality of inclusive rules of recognition. According to (6), it is a necessary truth that if a judge is guided by an inclusive rule of recognition, then he will conform to M, where M is some moral rule. As we have seen, M cannot guide conduct because it is not possible for a judge to be guided by the inclusive rule of recognition and not conform to M. The static nature of an inclusive rule of recognition will not allow for it. By contrast, it is not a necessary truth that if a judge is guided by an exclusive rule of recognition, then he will conform to L, where L is some rule that has the appropriate social pedigree at some time t. For we can always suppose that L does not have the appropriate pedigree at t, in which case a judge guided by the exclusive rule of recognition might not conform to L. Therefore, if primary legal rules are to be capable of making practical differences, we must make sure that the secondary rules pick out a class of norms whose membership is not fixed. Exclusive rules of recognition satisfy this requirement. The set of pedigreed rules fluctuates depending on which rules bear the right pedigrees at any given time. Exclusive rules of recognition are dynamic in the sense that they are capable of motivating different actions at different times. This dynamism is what ensures the consistency of exclusive legal positivism with the Practical Difference Thesis. Himma disputes my claim that the class of pedigreed rules is thoroughly dynamic. Appealing to Harts doctrine of the Minimum Content of Natural
21. By claiming that morality is a static system, I do not mean to imply that morality is absolute. Someone can be a moral relativist and still believe that morality is static. For the moral relativist can believe that even though there are many moralities, each one is static. For the sake of convenience, however, I have been talking, and will continue to talk, as if there were only one correct moral system. 22. The whole contrast between natural and positive law may, in a certain sense, be presented as the contrast between a static and a dynamic system of norms. Hans Kelsen, GENERAL THEORY OF LAW AND STATE 400 (Anders Wedberg ed., 1945).
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Law, he contends that certain legal rules are necessary constituents of any legal system.
[I]t is not always a contingent matter as to what rules are valid under an exclusive rule of recognition. Hart argues convincingly that there are some rules that must be valid in order for a system of rules to operate as a legal system. For it is a conceptual truth that law must conduce to the minimum purpose of survival which men have in associating with one another and there could not be a society in which theft and violence are not prohibited.23
And if certain primary legal rules are necessary for the existence of a legal system, then a subset of the class of pedigreed rules is fixed. According to my argument, then, rules that are members of that subclass cannot make a practical difference.
Let XRoR be an exclusive rule of recognition and let RNL be a valid rule under XRoR that reproduces some portion of the minimum content of the natural law. If the judge is motivationally guided by XRoR, she cannot be motivationally guided by RNL. Though RNL is valid in virtue of having an appropriate source, it is a conceptual truth that there could not be a legal system in which XRoR is a binding rule of recognition and RNL is not a valid rule. For this reason, there is not sufficient elbow room for RNL to make a practical difference in the judges deliberations.24
If every rule that comprises the minimum content of natural law is a necessary constituent of every legal system, then we are unable to imagine a situation where a judge does not conform to such rules if he is guided by an exclusive rule of recognition. Any such rule would be incapable of making a practical difference despite its possessing a pedigree. It follows, according to Himma, that the Practical Difference Thesis is also inconsistent with exclusive legal positivism. If so, there would be no benefit in choosing exclusive over inclusive legal positivism on this ground. In response, two points can be made. First, Himma is wrong to characterize Harts doctrine about the minimum content of natural law as a conceptual claim. Hart is quite explicit that he thinks it coherent to conceive of a legal system that lacks any or all such content.
There are no settled principles forbidding the use of the word law of systems where there are no centrally organized sanctions, and there is good reason (though no compulsion) for using the expression international law of a system, which has none. On the other hand, we do need to distinguish the place that sanctions must have within a municipal system, if it is to serve the minimum purposes of being constituted as men are. We can say, given the setting of natural facts and aims, which make sanctions both possible and
23. Himma, supra note 9, at 14 (citing Hart, supra note 6, at 193). 24. Himma, supra note 9, at 15.
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necessary in a municipal system, that this is a natural necessity; and some such phrase is needed also to convey the status of the minimum forms of protection for persons, property, and promises which are similarly indispensible features of municipal law. It is in this form that we should reply to the positivist thesis that law may have any content.25
Hart did not, therefore, believe that any primary legal rule was conceptually necessary. The only rules that are not contingent members of a legal system are the rules of recognition, change, and adjudication. Second, even if Harts doctrine of the minimum content of natural law were taken as a conceptual claim, this would not show that the existence of any particular rule is necessary. The doctrine merely requires that every legal system contain certain kinds of rules. For example, every legal system must have rules prohibiting some forms of physical aggression between certain members of the community. However, there are an endless variety of rules that satisfy this requirement. A complete ban on assaults certainly counts, but so does one that prohibits anyone from assaulting whites, yet permits whites to assault blacks. As Hart argued against natural law theorists in the section following his discussion of the minimum content of natural law, [t]he protections and benefits provided by the system of mutual forbearances which underlies both law and morals may, in different societies, be extended to very different ranges of persons.26 Therefore, to show that any particular rule that resides within the minimum content makes a practical difference, we need merely imagine that such a rule has been replaced by a different rule from the same general category. Himma also disputes my claim that morality is a static normative system. He claims that according to ethical subjectivists morality is dynamic.
Ethical Subjectivism: For all norms R, R is a morally valid rule in group G if and only if the majority of the members of G accept R as a morally valid rule.27
The ethical subjectivist, therefore, believes that morality is a dynamic system because its content is a function of the attitudes of the members of the relevant group. If members of G no longer believe that promises should be kept, then morality would no longer require that promises be kept in G. If ethical subjectivism were true, then an ethical subjectivist could account for the practical difference that pedigreeless moral rules are capable of making in inclusive systems.
[F]or any R morally valid in virtue of what people in G believe and legally valid in virtue of its moral merit under a sufficiency rule SRoR, R is capable of motivationally guiding the judge insofar as it is possible that SRoR validates some R* inconsistent with R. Since it is possible that people in G accept R* making R* morally valid in G, it is possible that SRoR validate R* in G. Under
25. Hart, supra note 6, at 199. 26. Id. at 200. 27. Himma, supra note 9, at 16.
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the assumption that ethical subjectivism is true, a judge in G can simultaneously be motivationally guided by SRoR and R.28
In order to evaluate Himmas interesting challenge, it will be helpful to introduce the distinction Hart drew between critical morality and positive morality.29 The critical morality of a group represents the set of rules that are morally valid in that group. The positive morality of a group represents the set of rules that members of that group accept as morally valid in that group. Ethical subjectivism, therefore, attempts to reduce critical to positive morality: A rule is morally valid in a group if and only if it is accepted by members of that group. I doubt that Himma takes ethical subjectivism to be a metaphysical theory. Rather than rescuing inclusive legal positivism, a metaphysical reduction of critical to positive morality would eviscerate it. Ethical subjectivism, understood metaphysically, would claim that moral properties are empirical properties about social groups. If this were so, then inclusive legal positivism would collapse into exclusive legal positivism, because both would demand that legal norms have social sources and that these norms are valid in virtue of those sources. Himma must want ethical subjectivism to be understood not as a metaphysical theory, but as a semantic one: What we mean when we ascribe moral validity to a certain rule is just that it is accepted by members of our group. On this view, our understanding of critical morality would admit of a dynamic elementbecause the set of rules we describe as morally valid is determined by the attitudes of the members of our group, the set changes when our attitudes change. Understood semantically, however, ethical subjectivism is essentially a corollary of Harts Practice Theory of rules and, as a result, suffers the same defects. In The Concept of Law, Hart claimed that a rule exists in a group only if it is accepted by the members of the group from the internal point of view.30 Hart later abandoned this theory because, as Dworkin pointed out, it would be impossible for a member to criticize the social morality of the group.31 If Smith refuses to take off his hat when entering a church and, when challenged, claims that the no hats in church rule is invalid, he is not being incoherent, although he might nevertheless be wrong. Critical morality is, after all, criticalthe concept always allows someone to criticize the dominant morality of the group in which he lives.32 Ethical subjectivism, like the Practice Theory, condemns moral criticism of the majority as a conceptual matter. Hart would have done himself no
28. Id. 29. See H.L.A. Hart, LAW, LIBERTY AND MORALITY 17 (1963). 30. See Hart, supra note 6, at 5456, 8688. 31. See Ronald Dworkin, The Model of Rule II, in TAKING RIGHTS SERIOUSLY, supra note 3, at 46, 5253. 32. Recall Webers description of the charismatic leader: It has been written that . . . , but I say unto you. . . . Max Weber, ECONOMY AND SOCIETY 1115 (Guenther, Roth, and Claus Wittsch, eds., 1968).
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favor were he to have returned to the Practice Theory simply to save inclusive legal positivism. C. The Simultaneous Guidance Thesis The argument presented in section I did not purport to show that judges cannot be guided by a moral rule that lacks a social pedigree. Rather, it attempted to demonstrate that judges cannot be guided by a moral rule that lacks a pedigree at the same time as they are guided by an inclusive rule of recognition. Himma believes that Hart can consistently accept both this conclusion and the Practical Difference Thesis. According to Himma, even assuming that Hart required that primary legal rules are capable of making practical differences, he did not think that they must do so at the same time that secondary rules guide conduct. Himma calls the requirement that primary rules be capable of guiding conduct concurrent with the guidance of secondary rules the Simultaneous Guidance Thesis and claims that Hart never held such a view.33 Himma is right that Hart never announced a commitment to the Simultaneous Guidance Thesis, but he did the next best thing. He claimed that in the normal course of events, judges treat the primary legal rules as guides to their conduct.
[I]t is surely evident that for the most part decisions, like the chess-players moves, are reached either by genuine effort to conform to rules consciously taken as guiding standards of decisions or, if intuitively reached, are justified by rules which the judge was antecedently disposed to observe and whose relevance to the case in hand would generally be acknowledge.34
Since Hart was committed to the Conventionality Thesis, he also thought that judges are normally guided by the rule of recognition. The normal state of affairs is thus one of simultaneous guidanceof judges guided both by the rule of recognition and by the rules validated by it. If judges normally guide their conduct both by the secondary and primary rules, it follows that the primary legal rules must be capable of guiding conduct even if judges guide their conduct by the secondary rules. In response, Himma might concede that the normal state of affairs is one of simultaneous guidance and that, in those situations, the primary legal rules are capable of guiding conduct. Yet, he might argue that this does not require Hart to admit that every legal rule must be capable of guiding conduct concurrent with the guidance of the secondary rules. The fact that judges are for the most part guided by both primary and secondary rules
33. Himma, supra note 9, at 3536. 34. Hart, supra note 6, at 141.
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can be attributed to the rules that have pedigrees. If so, there would be no reason to insist that rules that lack pedigrees be capable of guiding conduct at the same time as the rule of recognition guides conduct. Two responses are in order. First, when Hart claimed that judges are guided by primary legal rules for the most part, he was simply making allowances for cases in which judges disregard the rules and render decisions on the basis of their own political or personal preferences. In doing so, Hart was agreeing with the legal realists that judges sometimes ignore the law. He strongly denied, however, that this is the normal state of affairsfor the most part judges treat the rules as reasons for action and act for those reasons, or at least are prepared to justify their actions by reference to such reasons. When judges are honest to themselves and to others, my sense is that Hart would have admitted that the primary rules guide their conduct at the same time as the rule of recognition guides their conduct. Second, strange results follow when it is allowed that rules that lack pedigrees need not guide conduct in the face of guidance by the rule of recognition. For according to the Conventionality Thesis, legal rules exist only because judges are guided by the rule of recognition that sets out criteria that the existing rules satisfy. Hence, if legal rules that lack pedigrees cannot guide conduct at the same time as the rule of recognition guides conduct, it turns out that those who create these rules can never use them. Only those who play no role in their generation can utilize them in guiding their conduct. This is a strange result, but perhaps not fatal. Himma may be willing to accept it for the sake of preserving the coherence of inclusive legal positivism. As I will show in the next section, however, legal rules that lack pedigrees cannot even guide the conduct of judges who do not guide their conduct by the rule of recognition. It should be pointed out that exclusive legal positivism does not generate such results. Even though a judge is guided by an exclusive rule of recognition, she may still be guided by a rule validated by it. We might say that only pedigreed rules can result from rule-guided behavior and still result in rule-guided behavior.
D. Two Notions of Conformity As we have seen, the violation of the Practical Difference Thesis occurs only with respect to agents, such as judges, who guide their conduct by their systems rule of recognition. Ordinary citizens need not, and, at least in our system, generally do not, guide their conduct by the rule of recognition. One cannot conclude from the argument, therefore, that ordinary citizens cannot be guided by moral rules that lack social pedigrees. The limited scope of this argument might be thought to give Hart an out. As Himma argues, Hart might respond that the Practical Difference Thesis
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has been formulated too broadly. Legal rules need not necessarily play dual rolestheir only essential function is to secure conformity among the norm-addressees. The fact that moral rules that lack social sources cannot make a difference to the evaluative practices of judges does not count against the Practical Difference Thesis because it is only for those to whom legal rules are addressed that these rules must make a difference. This response fails for four reasons. First, as we saw in the previous section, Hart believed that in the normal course of events judges are guided by primary legal rules in adjudication. If primary legal rules guide judicial conduct, then they must be capable of guiding judicial conduct. A theory that had the consequence that certain primary rules could not make practical differences for judges would thereby be unable to account for the fact that primary legal rules guide judicial conduct, at least for the most part. Second, not only did Hart believe that primary legal rules normally guided conduct in adjudication, but he also believed that this is one of their functions: I think it quite vain to seek any more specific purpose which law as such serves beyond providing guides to human conduct and standards of criticism of such conduct.35 Third, many of the sourceless moral norms that inclusive legal positivists wish to countenance as legal norms, or at least as eligible to be legal norms, are in fact addressed to judges. Consider the norm that played the starring role in Riggs v. Palmer, and which Dworkin made famous: No person should be permitted to profit from their own wrong.36 This norm is not directed at murdering beneficiariesit is directed at those who are in a position to invalidate certain transactions that would result in a wrongdoer profiting from his wrong, e.g., judges. As the argument above shows, this norm could not make a practical difference to the majority in Riggs if they were being guided, at the same time, by an inclusive rule of recognition. Fourth, while the argument presented only shows that sourceless rules cannot guide the behavior of judges, because they cannot make a practical difference, this does not mean that they can guide the conduct of ordinary citizens. For it can be shown via a different argument that such rules cannot guide the conduct of ordinary citizens even if they do not guide their conduct by the rule of recognition. In order to present this argument, however, we must be clear about the different ways that rules can guide conduct and the way that Hart believed that legal rules are supposed to guide the conduct of ordinary citizens. III. THE ARGUMENTPART TWO Right now, I am conforming to the rule prohibiting murder. However, we all should hope, I am not being guided by it. Since I have no inclination to
35. Id. at 249 (emphasis added). 36. Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889).
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murder anyone at this moment, I have no need to appeal to such a rule. We say that an agent is guided by a rule only when the rule makes a difference to his practical reasoning. Unfortunately, rule-guidance is an ambiguous label, for legal rules can affect practical reasoning in several different ways. In the first instance, one can look to a legal rule as a means of finding out whether the law regulates certain conduct and, if so, how. The potential jaywalker might consult the no-jaywalking rule to determine whether jaywalking is a lawful activity. If he conforms as a result of learning from the rule that jaywalking is prohibited, that is, if he crosses only at the corner and with the green light, then we can say that his conduct has been epistemically guided by the rule.37 Epistemic guidance is agnostic with respect to the agents ultimate motivations for conformity. A person might conform to the rule simply because he wants to avoid being punished for breaking the law. Or he might conform because he believes that he has a moral obligation to be a law-abiding citizen. Central to epistemic guidance is the fact that the rule was the source of information regarding what counts as conformity, not necessarily the source of motivation for conformity. Epistemic guidance, however, is not purely epistemic. An agent has not been epistemically guided by a rule if he violates the rule. The agent must conform to the rule, and information gleaned from the rule must form at least part of the reason for such conformity. There is another sense of rule-guidance, however, where the motivational role of the rule is crucial. We can say that an agent is motivationally guided by a rule when the agent takes the rule as the sole source of his motivation for conformity, i.e., when he conforms simply because the rule regulated the conduct in question. In our jaywalking example, if the agent conforms simply because there is a rule that forbids jaywalking, then that agent has been motivationally guided by the law. With these two concepts of rule-guidance in mind, we should ask which one Hart had in mind when he declared that the principle functions of the law as a means of social control are . . . to be seen in the diverse ways in which the law is used to control, to guide and to plan life out of court.38 Did he mean epistemic or motivational guidance? I think that there are two fairly strong reasons to believe that Hart meant epistemic guidance. First, if the function of legal rules were to motivationally guide conduct, then it would be irrational for legal officials to enact rules when they believed that people were motivationally indifferent to the law qua law and complied only to avoid the sanctions attendant to their violation. But surely it makes sense to enact rules in order to guide the conduct of those hostile to authority. Holmess bad man does not motiva37. When I say that an agent has learned information from the rule, this should be understood as short-hand for the agent having learned the information from some statement of the rules content. 38. Hart, supra note 6, at 40.
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tionally guide his conduct according to the law, but he does epistemically guide his conduct, at least when legal regulations are correlated with the imposition of significant sanctions, or the risk thereof. Second, it would be strange to claim that, as a conceptual matter, legal officials must care about the motivational sources of conformity. Why must they have an interest in the reasons why people obey the law, as long as they obey? More plausible is the idea that the essential function of legal rules is to ensure that people obey the law, not that they obey it for a certain reason. To be sure, it is an essential feature of legal rules that they have the capacity to motivationally guide,39 and, indeed, this capacity explains why many do in fact conform to the law. Yet, the guidance function of the law is served regardless of whether people conform out of a sense of moral obligation, tradition, habit, or fear. If the function of legal rules is simply to secure conformity, we might wonder why they are even needed. After all, why cant people simply appeal to moral rules, or other social rules, to answer their practical questions?40 As Hart explained, the introduction of legal rules cures several problems that would plague any attempt to guide conduct without them.
It is plain that only a small community closely knit by ties of kinship, common sentiment and belief, and placed in a stable environment, could live successfully by such a regime of unofficial rules. In any other condition such a simple form of social control must prove defective. . . . Hence if doubts arise as to what the rules are or as to the precise scope of some given rule, there will be no procedure for settling this doubt.41
In a system of pure customary rules, where rules exist if and only if they are accepted as binding by the members of a group, any doubt or disagreement as to the existence of a certain rule can be resolved only through an appeal to shared judgments about what ought to be done. This method of dispute resolution would be unavailable, or prove ineffective, in any group that exhibited a significant degree of heterogeneity in beliefs and values. The problems of uncertainty could not be cured by appealing to a common fund of judgments about what ought to be done in a group that lacked such a fund. Even when members of a group are in general agreement about the principles that should govern their affairs it may not be feasible for them to appeal to such principles in order to resolve their disputes. For disagreements often arise when the disputants have an interest that the disagreement be resolved in a certain direction, and this interest may cloud their judgment about the precise form, scope, or application of such norms. As
39. As Hart pointed out, it is a fact of enormous importance that legal rules are formulated not as naked threats but as rules, i.e., they are couched in the normative language of duty, obligation, rights, and powers. 40. Recall that for Hart the answer to this question does not lie in the need for centralized enforcement and sanctioning. See id. at 9394. 41. Id. at 92.
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Locke emphasized in his Second Treatise of Government, feuds are likely to break out even among the well-intentioned when they act as judges in cases in which they are also the litigants.42 A pure system of primary rules thus resembles a Lockean State of Nature, in which no authority exists to resolve disputes among quarreling coalitions. The absence of shared judgement in a group, however, may have nothing to do with divergence in belief or sentiment. It may simply be attributable to the fact that few have formed any beliefs about what ought to be done in the circumstances. As society becomes more complex, the range of normative questions that can and do arise greatly expands, and no consensus or dissension may emerge around any given issue, especially when it is one of first impression. In the absence of some procedure for identifying those rules that are binding on them, therefore, members of a certain group may not know what they should do when faced with such questions. [T]he puzzled man or ignorant man who is willing to do what is required if only he can be told what it is43 would be at a complete loss. These problems are remedied, or at least greatly alleviated, by the introduction of authoritative marks. By an authoritative mark Hart meant some feature of a legal norm that identifies it as a legal norm.44 The function of an authoritative mark is to enable a norm-subject to distinguish genuine legal rules from imposters and thereby to recognize those rules that are authoritative and binding on him. On Harts account, the authoritative marks of a legal system are set out in the systems rule of recognition.
The simplest form of remedy for the uncertainty of the regime of primary rules is the introduction of what we shall call a rule of recognition. This will specify some feature or features possession of which by a suggested rule is taken as conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts.45
The rule of recognition in the United States legal system, for example, designates, inter alia, that all norms that have been duly enacted by Congress under conditions set out in Article I of the Constitution are legally valid norms. Any doubt or disagreement regarding whether a norm regulating interstate commerce is a law of the system can be resolved by checking to see whether the norm bears the appropriate mark of authority, i.e., whether it has been duly enacted by Congress. Marks of authority, therefore, allow complex societies to overcome the informational problems associated with a regime of pure customary law. By designating those norms that are authoritative and binding, these marks eliminate the need for people to resolve their disagreements by engaging in
42. John Locke, TWO TREATISES OF GOVERNMENT, Chapter 3 (C.B. Machpherson, ed., 1980) (1690). 43. Hart, supra note 6, at 40. 44. Id. at 95. 45. Id. at 94.
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normative deliberation and debate. People may look to the mark to answer their questions about which rules are legitimate and thus sidestep the problems that arise when each attempts to answer practical questions for himself. We see that the function of a legal rule is not simply to secure compliance by informing the norm-subject of his obligations or rights. More accurately, it is to do so in a way that eliminates the need for agents to engage in normative deliberation about the appropriate course of conduct to resolve their doubts or disagreements. And legal rules are able to accomplish this function because they bear the mark of authority set out in their systems rule of recognition. Because it falls to authoritative marks to eliminate the need for deliberation, it follows that no mark can serve this function if the only way someone could identify it as a mark were via deliberation. And if such a mark could not serve its function, it follows that a rule that bore such a mark could not serve its function. Such a rule could not make the right sort of practical difference: There would be no way for an agent to determine his legal obligations or rights without addressing the question that legal rules were meant to obviate, namely, What rules should I follow? If the above analysis is correct, then inclusive legal positivism is inconsistent with the epistemic-guidance function of legal rules. For inclusive legal positivists believe that the rule of recognition can set out criteria of legality that refer to a norms moral properties. Since the rule of recognition sets out the authoritative marks of the legal system, inclusive legal positivists permit moral properties to be marks of authority. Yet moral properties are useless as marks of authority precisely because they cannot be identified as marks independently of normative argument. It follows, therefore, that rules that bear such marks cannot epistemically guide conduct, because they are incapable of making the right sort of difference to practical reasoning: Agents cannot learn of their obligations or rights without answering the question that such rules are supposed to obviate. Exclusive legal positivists do not fall prey to this objection. For the only marks of authority they accept are pedigree ones, that is, those that relate to a rules social source. Because pedigree marks can be identified independently of deliberation on the merits, rules that bear such marks can be identified as legal rules without deliberating. Hence, legal rules that have social sources are capable of making the right sort of practical difference, whereas rules that lack such sources are not. IV. RESPONSES TO ARGUMENTPART TWO A. Direct and Indirect Guidance The above argument is essentially the one I presented in my original article. As Jules Coleman has pointed out, however, the argument is incomplete.46
46. See Jules L. Coleman, THE PRACTICE OF PRINCIPLE (forthcoming 2000).
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The missing step occurs at the end where I claim that if an authoritative mark can only be identified as a mark by deliberating about the merits of following the rule, then an agent would be unable to identify the rule as a legal rule without deliberating about the merits of following the rule. This assumes that an agent can identify a rule as a legal rule only through its mark, and surely this is false. There are many ways an agent can learn about the law: He can read legal how-to books, speak to criminals, consult lawyers, and so on. Indeed, in most modern legal systems, most citizens have no idea what their rule of recognition is and hence have, at best, a partial knowledge of the marks of authority. They do not always, and perhaps only rarely, find the rules in the official way, i.e., by reference to the appropriate marks. Coleman expresses this point by distinguishing the semantic conception of the rule of recognition from the epistemic one.47 The semantic conception treats the rule of recognition as a membership test for a certain legal system. The epistemic conception, by contrast, treats the rule of recognition as a procedure used by individuals to identify the law of that system. According to Coleman, Hart treated the rule of recognition as a semantic rule: It sets out the criteria of legality for a system. Coleman claims that there is no reason to think that Hart understood the rule of recognition epistemically, as a rule of identification. The law may guide people even though they do not learn of the law by applying their systems rule of recognition. It is possible, therefore, for a mark to be identifiable as a mark only through deliberation, and yet for someone to learn that a rule that bears that mark is a legal rule without deliberating. Consider a situation in which an agent consults someone whom he takes to be a moral expert and acts on the basis of the advice provided. That agent will have been guided by the rule without having deliberated himself. Coleman concludes that it is possible for an agent to learn of his legal obligations or rights from rules that are valid in virtue of their moral content without having to engage in normative deliberation and, hence, to epistemically guide his conduct by such rules. It should be noted that Colemans objection does nothing to affect the argument of section I above, because, according to Hart, judges are guided by the rule of recognition. The rule of recognition, after all, is a convention among judges to treat certain rules that bear certain features as authoritative. Yet, Colemans point is well-taken in the case of ordinary citizens, for the rule of recognition need not be known, nor practiced, by the population at large. Nevertheless, I do not think this objection is fatal to the argument in section III above. To see this, consider a comparable scenario involving theoretical authority. Suppose I feel ill and go see my doctor. After the
47. Coleman, supra note 1, at 5.
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examination, my doctor says to me: My advice to you is to do whatever you can to get better. Incredulous, I say to him: What kind of advice is that? He replies, Medical advice. I say to him: Well, should I take any medication? He replies: Only if it is medically appropriate. Feeling even sicker, I ask: Which medication is medically appropriate? He replies: The one that will restore you to health. I thank him and pay my bill on the way out. Dazed and confused, I run into my friend Pete who also happens to be a doctor. I tell him the advice my doctor gave me and he says, Well, given the way you look, I would say that his medical advice is that you should take Penicillin. I say to him: How do you know that this is advice? Well, Pete responds, that is what is medically appropriate for you to do. In this vignette, one gets the sense that it is not my doctor who has advised meit is Pete who has. The reason is clear: People go to doctors because they believe that doctors know considerably more about medicine than they do and are able to apply that knowledge in dispensing advice. In my doctors case, he did not supply me with any information that would be useful in making me feel better; in fact, everything he told me I knew before I entered his office. The one who truly added value was Pete. He applied his superior knowledge to my situation and his advice reflected this knowledge. When I acted on his interpretation of my doctors advice, I was in fact acting on Petes advice. This does not mean that in order for me to be guided by my doctors advice I have to hear the advice directly from my doctor. If the doctor calls my wife and tells her that I should take penicillin four times a day for ten days and I hear this advice from my wife, I am surely being guided by my doctors advice if I follow through on this regimen. As long as my wife does not try to interpret the doctors advice by using her own medical beliefs, I will be guided by my doctors, not my wifes, advice. Returning to the case of legal authority, we can now see the importance of making sure that legal rules be identifiable in a way that does not require normative deliberation. For if deliberation were necessary, someone would have to deliberate, and then they would be playing the role that legal authorities are supposed to play, namely, obviating the need for all others to engage in deliberation and debate by designating those rules that are binding. As with the comparable case of theoretical authority, it is unnecessary that an agent learn that a rule is a legal rule directly from the authoritative mark. It is enough if the agent learns this information from someone who learned it from the mark or learned it from another who learned it from the mark, and so on. Once the process of identification is contaminated by someones deliberation, however, the chain of authoritative guidance is broken and the deliberator plays the role of the practical authority. Accordingly, we can distinguish between two ways in which an agent might become informed about the content of a ruleone direct, the other indirect. An agent is directly informed about the content of a rule when he
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learns this information from the rule itself without engaging in deliberation on the merits. An agent is indirectly informed about the content of a rule when he learns this information from someone who was either directly or indirectly informed about the content of the rule. Likewise, we can distinguish between direct and indirect epistemic guidance. An agent is directly epistemically guided by a rule when he conforms to such a rule as a result of being directly informed about the rules content. An agent is indirectly epistemically guided by a rule when he conforms to such a rule as a result of being indirectly informed about the rules content. Thanks to Colemans objection, the argument of section III above can now be formulated more precisely. The problem with inclusive legal positivism is that it countenances rules that are incapable of either directly or indirectly epistemically guiding conduct. For if an authoritative mark could not be identified except via deliberation, then in order for a rule that bore such a mark to be identified as a legal rule, someone would have to engage in the requisite deliberation, and this would break the chain of authoritative guidance. B. Partial Guidance I have claimed that a rule is capable of epistemically guiding conduct only if an agent is capable of learning of his obligations or rights from the rule without engaging in deliberation. Waluchow argues that this requirement is too strong.48 There are cases, he believes, in which a rule is capable of guiding conduct even though the agent must engage in some deliberation in order to learn of his obligations or rights. Waluchow makes his case by reconsidering Razs arbitrator example.49 Suppose that two parties are in the midst of a dispute and submit to arbitration in order to resolve it. Each side presents its best argument as to why it ought to win. Each points to a different rule and claims that its rule is valid and the others is not. Assume that after hearing both sides the arbitrator tells them that the valid rule is the fair one. Such a decision is not likely to be very helpful, but, as Waluchow points out, it is not useless. For each party now knows that the question that it must face is whether its favored rule is fair. The arbitrator has provided partial guidance in that he has potentially narrowed the scope of their dispute. They no longer need decide, for example, whether efficiency trumps fairness or vice versathey now know that fairness trumps efficiency. To be sure, the parties might nevertheless disagree about which rule is fair, and so their dispute will not be over. But given that their disagreement has now shrunk, they may be in a better position to settle their differences. And it is possible that the parties do not disagree about whether the plaintiffs rule
48. Waluchow, supra note 9, at 6264. 49. See Joseph Raz, Authority, Law and Morality, in ETHICS IN THE PUBLIC DOMAIN 219 (1994).
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is fair, and, consequently, the arbitrators rule will have completely resolved their conflict.
The dependent reasons further recourse to which would normally defeat the normal goal of arbitration (i.e., to settle a dispute) are only the contested reasons under dispute. Should other dependent reasons enter the picture, then it is not at all clear that the (normal) goal of arbitration would be thwarted. There could, e.g., be complete agreement among the parties on what the fairest decision is, but disagreement about whether the agreed facts of relative fairness are sufficient to outweigh, e.g., reasons of inefficiency, loyalty or compassion. A directive that makes reference to fairness, and whose understanding or interpretation therefore requires appeal to agreed moral reasons of fairness, can therefore be quite serviceable in accomplishing the goals of this particular case of arbitration.50
Waluchow spends much of his article attempting to show why the phenomenon of partial guidance is a counterexample to Razs theory of authority. He claims that his argument against Raz applies equally to me.51 This is unfortunate because there are several important differences between the arguments Raz and I offered. Instead of specifying the differences, let me consider whether the arbitrator example would constitute an effective reply to the argument I presented. Let us distinguish between complete and partial epistemic guidance. A norm completely epistemically guides when the agent is able to learn of his obligations or rights from the norm without engaging in any deliberation. A norm partially epistemically guides when the agent is able to learn of his obligations or rights with the norms help, but must engage in some deliberation in order to complete the inference. Presumably, Waluchow believes that I am committed to saying that the arbitrators decision cannot guide conduct. Why? Because, on the view I have been advocating, a rule or decision cannot guide conduct unless it completely epistemically guides conduct. However, Waluchow believes, the arbitrators decision can guide conduct even though the parties might still have to engage in some deliberation in order to learn which rule is valid. It can guide, in other words, as long as it partially epistemically guides. I do not deny, however, that the arbitrators decision is capable of guiding conduct. For it is simply not true that, in the arbitration case, the parties must deliberate in order to determine the content of the arbitrators decision. If the arbitrator tells the parties that the valid rule is the fair one, then the parties know that they are obligated to act fairly. The decision is capable of completely epistemically guiding their conduct because the parties are able to learn that they are required to act fairly without engaging in any deliberation on the merits of the rule. What Waluchow takes to be cases of partial guidance are really instances
50. Waluchow, supra note 9, at 6263. 51. Id. at 78.
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of complete guidance. The arbitrators decision does not partially guide the parties with respect to the norm requiring them to act fairly, because the parties need not engage in any deliberation on the merits in order to discover that they are required to act fairly. The real issue here, however, is not how to treat the arbitrators decision. If Waluchow wants to say that the decision can partially epistemically guide conduct, he is entitled to do so. The real issue is how to understand the rule that is at issue between the parties. Let us assume that both parties agree that the plaintiffs rule is the fair rule. An inclusive legal positivist will say that the plaintiffs rule, even though it has not been announced by the arbitrator, may be an authoritative rule. By contrast, the exclusive legal positivist will insist that the plaintiffs rule cannot be authoritative in the absence of some decision by the arbitrator regarding the validity of that norm. In support of the inclusive legal positivists position, Waluchow might argue as follows: The plaintiffs rule is capable of epistemically guiding conduct, given that, subsequent to the arbitrators decision, the parties can appeal to the rule and, without having to engage in deliberation, learn of the obligations imposed by the arbitrator. The plaintiffs rule can count as a bona fide authoritative rule because it can completely epistemically guide conduct. I think, however, that the appearance of epistemic guidance in this case is an illusion. In order for the plaintiffs rule to epistemically guide conduct, it must be capable of making a practical difference. However, the plaintiffs rule does not make a practical difference qua authoritative rule for either of these parties. Since they agree that the plaintiffs rule is a fair one, they are not divided on the validity of this rule given the arbitrators decision. All they need to resolve their dispute is the arbitrators decisionappealing to the plaintiffs rule as an authoritative rule makes no additional difference to them. If they were to believe that the plaintiffs rule is not authoritative, they would act in exactly the same way as they would have acted had they attributed authoritative status to it. Certainly, the plaintiffs rule will not be capable of epistemically guiding the conduct of parties who disagreed about the fairness of the rule. These parties will have to engage in a debate in order to determine whether the rule in question is valid or not. Since the rule cannot epistemically guide the conduct of either party, I conclude that such a rule cannot be an authoritative rule. V. ALTERNATIVE ARGUMENTS It is important to distinguish between three versions of inclusive legal positivism. A general account claims that the presence or absence of moral properties may constitute either sufficient or necessary conditions for legality. A sufficiency account claims that the presence or absence of moral properties can constitute sufficient, but never necessary, conditions
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for legality. A necessity account claims that the presence or absence of moral properties can constitute necessary, but never sufficient, conditions for legality. The arguments of sections I and III above were aimed at the general and sufficiency versions of inclusive legal positivism. What I attempted to show was that the presence or absence of a moral property could not be a sufficient condition of legality if the Conventionality and Practical Difference Theses were true. Matthew Kramer marks the distinction between general and necessity accounts under the labels incorporationism and inclusive legal positivism.52 He further distinguishes between a robust and modest version of incorporationism. A robust incorporationism is highly permissive with respect to the content of the rule of recognition.53 Not only can the presence or absence of a moral property be a sufficient condition on legality in a legal system, but it can also be the only condition. A robust incorporationism, for example, would sanction a rule of recognition that required judges to apply all and only the best moral rules. Modest incorporationism, by contrast, allows the presence or absence of a moral property to be a sufficient condition of legality, but only in hard cases. All rules of recognition must employ sourcebased criteria and may utilize moral criteria only in order to resolve disputes involving rules validated by social sources. In his article, Kramer offers an argument against robust incorporationism. He also argues that my criticisms do not impugn modest incorporationism. I think, however, that both arguments are mistaken. Kramer begins his discussion by noting, following Hart, that the existence of law depends on a certain degree of convergent behavior among legal officials.
A fairly substantial degree of regularity is essential not just for the efficiency of a legal regime, but also for its very existence as such. Severe disaccordance among the countless decisions of officials will not only disrupt the smoothness of the regimes workings, but will also deprive those workings of the minimum of cohesion that is necessary for any scheme of governancethrough-legal-norms.54
Kramer argues, however, that a robustly incorporationist regime could not generate the adequate degree of convergence among officials. [I]n a regime where judges and other officials adhere to the robust version of the Incorporationist Rule of Recognition, their ostensible law-ascertaining activities will very likely partake of too little regularity to be properly classifiable as law-ascertainment.55 Kramers pessimism about the efficacy of
52. Kramer, supra note 9, at 83. 53. Kramer believes that even a robust incorporationist would place some restrictions on the rule of recognition, e.g., a norm could not be valid simply because a judge had a hunch that the rule was correct. Id. at 93. (Kramer, unfortunately, does not specify the content of this hunchI assume he means a hunch that the rule is morally acceptable.) 54. Id. at 94. 55. Id. at 96.
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robustly incorporationistic rules of recognition is not based on moral skepticism. Kramer takes no stand, at least in this paper, on the question of whether some moral questions have right answers.56 Rather, the problem is that the correctness of moral claims, should they have correct answers, is frequently indemonstrable and hence liable to be controversial. [A]lthough each moral problem tackled by Incorporationist officials may lend itself to a uniquely correct solution, the unique correctness frequently cannot be demonstrated in a way that will elicit widespread agreement. Regardless of the existence of objectively right answers, controversy will abound irrepressibly.57 Kramer is surely correct that a degree of convergent behavior among legal officials is a necessary condition for the existence of a legal system. This much is implied by the Conventionality Thesisone cannot have a convention of law ascertainment if there is no convergent behavior constituting the convention. He correctly claims as well that the problems of coordination imposed by a robustly incorporationistic rule of recognition would be substantial and most likely fatal to the generation or maintenance of the law-ascertaining conventions. It follows from these two observations that it is very improbable that a robustly incorporationistic legal system has extisted, or will ever exist. However, I do not see how this can be an argument against robust incorporationism; if anything, it is an argument for the view.58 For the thesis of robust incorporationism is conditional in nature. The robust incorporationist claims that if a judicial convention arises that treats moral appropriateness as the sole condition of legality, then such a conventional rule counts as a rule of recognition. Kramers observations show that the antecedent of this thesis is most likely falseit is highly unlikely that such a convention will arise. Hence, in virtually every case, the thesis of robust incorporationism is trivially true. The only way we can test the thesis is to assume the antecedent true and see whether the consequent is false. Imagine, therefore, that the improbable occurs: A given community institutes a robustly incorporationistic rule of recognition, and for some period of time, say two years and three months, judges generally agree with one another about the norms that ought to be applied and apply such norms. Or consider an institutional system that had just two judges, both of whom are twin sisters, attend the same church, and are like-minded on ethical issues. Kramer seems to give us no reason to doubt that these are legal systems. Kramer might argue that a different problem might arise in such systems. Even if a convention among judges were to exist, it would be highly unlikely that the general population would be able either to coordinate behavior
56. Id. at 98. 57. Id. 58. Although, as I indicate in the next paragraph, it is not a complete argument for robust incorporationism, insofar as it does not deal with cases in which conventions actually emerge.
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among themselves or to resolve their disputes by looking to morality. The degree of moral consensus required for social cohesion would be unavailable in all but the most primitive of communities.59 Again, I agree with Kramer that a robustly incorporationistic rule of recognition would not likely foster the degree of conformity necessary for a legal system to exist. However, it is hard to see how this observation could falsify robust incorporationism. Robust incorporationists do not claim that every normative system that contains a rule of recognition is a legal system. As Hart emphasized, in order for a legal system to exist two conditions must be satisfied.60 First, a rule of recognition must exist. Second, there must be a sufficient degree of obedience to the rules validated by the rule of recognition. The robust incorporationist must, therefore, be understood as making the following conditional claim: If a convention among judges to treat moral appropriateness as the sole condition of legality exists and there is a sufficient degree of conformity to the moral rules by the general population, then a legal system exists within that community. If Kramer is right, then the antecedent of the robust incorporationists claim is most likely false. Hence, in virtually every case, the robust incoroporationists claim is trivially true. Kramers argument against robust incorporationism, as we have seen, has the wrong logical form. The only way to falsify robust incorporationism is to assume that the empirical conditions necessary for the existence of legal systems have been satisfied and then ask whether, in such circumstances, a legal system truly exists. We have to assume, in other words, that a community attempts to institute a robust incorporationistic regime and is successful, at least to the extent that judges actually apply moral norms in cases that are brought before them and that people are generally obedient to those norms. To show that robust incorporationism is false, we must show that such a regime cannot be a legal system. Kramer gives us no reason to think that it cannot. The arguments I presented do have the correct logical form. For according to them, the above regime could not be a legal system because the moral rules validated by the fundamental law-ascertaining convention could not guide the conduct of judges. That is, in incorporationist regimes where the Conventionality Thesis is satisfied, the Practical Difference Thesis cannot be satisfied. Moreover, since conformity by the general population could not have resulted from the epistemic guidance of the moral rules, the rules countenanced by the incorporationist could not be legal rules because they are in principle incapable of fulfilling their essential function. There is a way to understand Kramers argument that presents it as having the right logical form. One might take him to be arguing that robustly incorporationistic rules of recognition cannot be real rules of recognition because they are unable to fulfill their functions. The argument might proceed as fol59. See, e.g., Kramers discussion of citizens expectations. Id. at 9899. 60. Hart, supra note 6, at 11217.
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lows. First, it is the function of all rules of recognition to secure enough coordination between legal officials, and between officials and the general population, to generate a legal system. Second, robustly incorporationistic conventional rules are in principle incapable of generating the requisite degree of coordination. It follows from the first two premises that robustly incorporationistic conventional rules cannot be rules of recognition. While this argument has the appropriate logical form, the second premise is false. Kramer has not shown, nor does he purport to show, that a robustly incorporationist conventional rule cannot in principle secure the requisite degree of coordination. All he claims is that massive failures of coordination are very likely.61 It is possible, then, for robustly incorporationistic conventional rules to secure the degree of coordination necessary to generate a legal system. Hence, they are not in principle, nor even nomologically, incapable of fulfilling their function. Kramer claims that the argument I offered does not impugn the viability of a more modest incorporationism, understood as a system that contains a rule of recognition that establishes that moral worthiness is a sufficient condition for the status of any norm as a legal norm only in hard cases that cannot be resolved by reference to legal norms from other sources.62 He agrees that in such a system moral norms validated by the mildly incorporationistic rule of recognition cannot guide conduct. Those principles cannot serve as such guides, because they do not add any reasons-for- action to those that already exist by dint of the criterion in the Rule of Recognition that obligates and empowers judges to rely on moral principles in difficult cases.63 Yet Kramer does not believe that such a consequence is fatal. Let me quote his argument in its entirety:
Still, the judges draw on such precepts not for the purpose of receiving or furnishing guidance, but for the purpose of terminating disputes. Very much because the situations that engender hard cases are situations in which there does not exist any clear-cut legal guidance on some or all of the relevant points of contention, the top priority of judges when handling such cases is to resolve the points at issue. Instead of somehow offering guidance where none is available, the moral principles that enable the resolution of the disputes are simply means of achieving closure. Rather than providing guidance, their dispute terminating effects substitute for guidance. We cannot expect any more in connection with hard cases, which are hard precisely because their facts are not subsumable under the ordinary legal norms that supply guidance by amounting to partly independent reasons for specific adjudicative decisions. Though an absence of guidance would be deeply problematic if it obtained in a legal system across the board, it is unavoidable and untroubling when confined to knotty cases that lie outside the ambit of the existing laws.64
61. 62. 63. 64. Kramer, supra note 9, at 96. Id. Id. at 101. Id. at 101102.
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Although I am not confident that I fully understand his response, Kramer seems to be suggesting an alternative function that sourceless rules might perform. While it is true that these rules cannot guide conduct, they still might be able to resolve disputes in hard cases. If this is his point, then I do not see how it constitutes a response to my challenge. When a rule is used to resolve a dispute, the rule is treated as a reason to decide the dispute in accordance with the rule. To resolve disputes, therefore, is to guide evaluative behavior. If my argument is correct, then moral rules that lack pedigrees cannot resolve disputes because these rules cannot motivate a judge to resolve a dispute in a manner differently than he might have, had he not appealed to the rule. The modestly incorporationistic rule of recognition furnishes all of the dispute resolution that the judge needs.65 Even if my argument were unsuccessful, I am not sure why Kramer believes that his argument against robust incorporationism does not discredit modest incorporationism as well. First, a modestly incorporationistic rule of recognition may not be all that modest. If a great number of hard cases arose in a certain regime, a modestly incorporationistic rule of recognition might be unable to generate the necessary coordination to fulfill the requirements for the existence of the law. Second, and more importantly, if legal positivists must take into account the destabilizing effects of moral dissensus, then it is not clear how Kramer can be confident that judges will actually resolve disputes in accordance with the appropriate moral rules. If it is so unlikely that judges will coordinate their behavior when there is no source-based law, why think that they will coordinate their behavior in those situations when the source-based law runs out? Kramer seems to be aware of this difficulty.
In any hard case where a uniquely correct solution is available, by contrast, only those officials who opt for the correct solution are acting strictly in accordance with the criteria in their Rule of Recognition. However, given that all the officials are credibly endeavoring in good faith to abide by those criteria (if indeed they are so endeavoring), and given that the unique correctness of the optimal solution is indemonstrable, the fact that some officials plump for suboptimal outcomes is not indicative of any breach of duties.66
Kramers argument appears to be that a convention can form in hard cases if judges attempt to comply with the rule of recognition in those situations.
65. To be sure, a judge might appeal to moral principles themselves to aid him in applying the rule of recognition. But such principles would be of heuristic value only and not an independent basis for deciding cases. On this point Kramer agrees: Although those moral precepts might fulfill a heuristic function, they do not constitute any decision-determining reasons (beyond those constituted by the instruction in the Rule of Recognition requiring judges to dispose of hard cases on the basis of moral precepts). Id. at 101. 66. Id. at 102.
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Whether they actual comply with the rule is immaterial to the existence of the rule. However, I do not think this can be correct. Rules of recognition are conventional rules, and conventional rules must be practiced. It is not enough that people try to conform to such ruleswhat matters is that they do as they are required to do. If most people who entered churches neglected to take off their hats, but instead mistakenly removed their shoes, then there would be no convention in that community requiring the removal of hats in church. Hence, if Kramer lacks confidence that judges will normally conform to the rule of recognition in hard cases, then it cannot be said that a rule of recognition exists that regulates these hard cases. All that would remain would be the convention to apply norms that have the appropriate social pedigreesall that would remain, in other words, would be an exclusive rule of recognition. VI. THE ARGUMENTPART THREE As I mentioned at the beginning of this article, the debate between exclusive and inclusive legal positivists arose in reaction to Dworkins critique of Hart. Dworkin had claimed that Harts version of legal positivism is committed to what Dworkin called the Pedigree Thesis, which holds that rules of recognition can validate a norm only on the basis of its pedigree, or social source. Dworkin argued that the Pedigree Thesis is false, and as incriminating evidence he cited examples in which he thought courts considered themselves to be legally obligated to apply certain norms in virtue of their moral appropriateness rather than their social pedigree. Since Dworkin believed that all positivistic rules of recognition had to set out source-based criteria of legality, he thought that he had falsified the central claim of legal positivism, namely, that every legal system contains a rule of recognition. Inclusive legal positivists responded by denying that legal positivism is saddled with the Pedigree Thesis. The Social Fact Thesisthat legal facts are grounded in social factswas cashed out in terms of the Conventionality Thesisthat every legal system contains a social rule of recognition. Inclusive legal positivists could thus accept Dworkins evidence at face value. When judges look to morally appropriate rules in hard cases, they are following the convention of applying rules that satisfy moral criteria of legality. Because inclusive legal positivism arose in this context, I had assumed in On Harts Way Out that inclusive legal positivists were most concerned to defend general or sufficiency accounts.67 By accepting that morality may be
67. I do not deny, of course, that there can be other reasons, besides answering Dworkins challenge, to embrace inclusive legal positivism. Many are attracted to this position, I believe, because they see no reason not to allow morality to be a condition on legality. Others, like Waluchow, believe that inclusive legal positivism is more descriptively accurate than exclusive legal positivism. Waluchow cites as evidence examples such as the Fifth and Fourteenth
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a sufficient condition of legality, the inclusive legal positivist could show that Dworkins principles were legally valid in virtue of a rule of recognition that validated norms based on their moral content. Restricting morality to a mere necessary condition on legality would seem to purchase nothing for the inclusive legal positivist, at least vis--vis the Dworkinian critique. Consequently, I spent little time in my earlier article discussing the necessity version of inclusive legal positivism.68 Not only did I find it remarkably easy to dispose of the view, I believed at the time that the necessity version posed little attraction in itself and did not merit extensive discussions. I was thus surprised to find Wil Waluchow, inclusive legal positivisms most ardent supporter, disavowing any commitment to the general or sufficiency versions of inclusive legal positivism. For him, inclusive legal positivism is, and has always been, the necessity version.69 Although Kramer believes that one form of the general version is acceptable, he believes that the necessity version is the core of inclusive legal positivism.70 Indeed, Kramer reserves the label inclusive legal positivism to refer exclusively to the necessity version. Let me, therefore, rehearse the argument that I advanced against the necessity version of inclusive legal positivism. I will then discuss Kramers response in turn. As we mentioned, with respect to ordinary citizens, the essential function of legal rules is to epistemically guide conduct. An agent is epistemically guided by a legal rule when he learns of his legal obligations or rights from the rule without having to engage in deliberation about the merits of following such a rule. Legal rules are able to perform this function because they possess authoritative marks. By appealing to the mark, agents are able to identify those rules that are authoritative without having to appeal to shared judgements about which rules are legitimate and which are illegitimate. Now consider an inclusive rule of recognition that requires judges to apply a norm if Congress has duly enacted it and only if it does not violate anyones fundamental rights. Consistency with fundamental rights is, therefore, a mark of authority in such a system. If an agent wants to know whether a given rule is a legal rule he must determine, or have someone else determine for him, whether it has been passed by Congress and, if so,
Amendments to the U.S. Constitution and the Charter of Rights of the Canadian Constitution, in which moral considerations are seemingly employed as necessary conditions on legality. I am very doubtful about this sort of motivationwhether these examples are best interpreted as setting out necessary conditions on legality or as general conditions of applicability for certain primary rules is a matter to be answered at the theoretical level. They are not simply brute facts that can falsify a certain theory about the nature of the law. For a powerful critique of Waluchow on this score, see Coleman, supra note 46. 68. See Shapiro, supra note 3, at 500502. 69. See Waluchow, supra note 9, at 79. 70. See Kramer, supra note 9, at 8384.
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whether it violates anyones fundamental rights. Identification of a rule as a legal rule thus necessitates that some agent engage in deliberation about the merits of following the rule. After all, one cannot know whether a rule violates fundamental rights unless one engages in a normative inquiry regarding the relation between the rule in question and those rights that are fundamental. It follows from this and the definition of epistemic guidance that such a rule cannot epistemically guide conduct. As we saw before, authoritiative marks must be identifiable as authoritative marks without deliberation given that their function is to enable agents to learn that a rule is a legal rule without deliberation. For if one could identify a mark only by deliberating on the merits of following the rule to which it is affixed, then one could not learn of ones legal obligations or rights from the rule without engaging in deliberation. The necessity version flouts this constraint precisely by allowing moral properties to be marks of authority.71 What goes for ordinary citizens must go for judges. In a system that treats morality as a necessary condition of legality, judges cannot be epistemically guided by legal rules whose legality depends on morality. Can judges at least be motivationally guided by such rules? To determine this, we need to say a bit more about Harts conception of motivational guidance. As I detailed in On Harts Way Out, Harts views about the nature of motivational guidance changed over time. The account he offers in Essays on Bentham is significantly different from the one laid out in The Concept of Law. Because I discussed both accounts in that article and Harts reasons for abandoning the early theory,72 I will describe what I understand to be his mature theory of motivational guidance. Recall that an agent is motivationally guided by a rule when he takes the rule as the sole motivating reason to comply. That agent complies simply because the rule regulates the action. This idea is fleshed out in Harts later theory by the notions of content independence and peremptoriness.73 A
71. One might argue, following Waluchow, that such rules can partially guide conduct, in that someone can learn of his obligations or rights with the help of the rules moral mark, even though he might have to engage in some deliberation in order to resolve fully his doubts or disagreements. If two people disagreed about the importance of fundamental rights in relation to efficiency, for example, then the mark that required legal norms to be consistent with fundamental rights would resolve this conflict. However, this dispute-resolving power of this moral mark is illusory in these cases, because the moral marks are always accompanied by pedigree marks and, as a result, are unable to make the right sort of difference to practical reasoning. To see this, we need only recognize that every doubt or disagreement resolvable by a moral mark is resolvable by a pedigree mark, and that there are doubts and disagreements that a pedigree mark can resolve that a moral mark cannot. The dispute concerning the relation between fundamental rights and efficiency can easily be resolved by either the moral or the pedigree mark, but disputes concerning the relation between, say, fairness and efficiency can be resolved only by the pedigree mark. In fact, moral marks create doubts and disagreements, for when a person is in doubt, or disagrees with another, about whether a certain rule bears the moral mark in question, the pedigree mark is unable to resolve this doubt or disagreement. Moral marks are either irrelevant or positively pernicious. 72. See Shapiro, supra note 3, at 48994. 73. See Hart, Commands and Authoritative Reasons, in ESSAYS ON BENTHAM 25355 (1982).
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valid rule is a content-independent reason for actionit gives an agent a reason to comply irrespective of whether the agent has reasons to act on its content. The fact that the rule requires that an act be done is, by itself, a reason to perform that act. A valid rule is also a peremptory reason for actionit is a reason to suspend deliberation about the merits of following the rule. The fact that the rule requires that an act be done is, by itself, a reason not to condition compliance on an assessment of the reasons for or against following the rule. We can say that an agent is motivationally guided by a rule when he treats it as both a content-independent and a peremptory reason for action. He treats it as a content-independent reason when he complies because he was so commanded. He treats it as a peremptory reason when he does not condition his compliance on the outcome of deliberation about the merits of following the rule. The notions of content independence and peremptoriness, therefore, capture the essence of motivational guidance, namely, that the agent acted because (content independence), and only because (peremptoriness), the rule regulated the action. Let us consider once again the rule of recognition that validates only those rules that are both passed by Congress and consistent with fundamental rights. If a judge must decide whether a given rule is a legal rule, she must assess some of the moral properties of the rule in question. She must determine whether the rule is consistent with everyones fundamental rights. It follows that the judge will not be treating the rule as a peremptory reason for action, given that her compliance is conditional on her judgment about the moral appropriateness of following the rule. Hence, a judge cannot be motivationally guided by such a rule.74 VII. RESPONSES TO ARGUMENTPART THREE Kramer was not convinced by this argument. He claims that a judge can be guided in a peremptory fashion by a primary legal rule even when he must
74. I am not here taking a position on whether judges must be capable of being motivationally guided by legal rules. I am arguing by cases. Having shown that judges cannot be epistemically guided by rules whose morality is a necessary, but not individually sufficient, condition on their legality, I argue that judges cannot be motivationally guided by such rules either. Nevertheless, I do think it is plausible to interpret Hart as having considered the motivational guidance of judges to be one of the functions of legal rules. He writes: What is crucial for legislation is that certain things said or done by certain persons which can be construed as guiding actions should be recognized by the Courts as constituting just such peremptory reasons for action, and so as law-making events. Id. at 260. I, therefore, disagree with Himma when he argues that there is no reason to believe such a claim. See Himma, supra note 9, at 3839. Nothing much rides on the truth of this assertion, however, for no argument that I have presented depends on it. If judges need not be motivationally guided by the rules that they must apply, then they must be epistemically guided by them, and I have argued that this is not possible. Himma is also wrong to have claimed that the argument in section I above presupposes that judges must be capable of being motivationally guided by primary legal rules. See id. at 34. It only requires that these rules be capable of making a practical difference.
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deliberate about some of the merits of the rule. The error, according to Kramer, is that I have disregarded Razs observations concerning possible restrictions on the scope of any particular reasons exclusionary or peremptory force.75 According to Raz, although a rule is a reason not to act on certain reasons for not conforming to the rule, it need not preempt every such reason.
It should be remembered that exclusionary reasons may vary in scope; they may exclude all or only some of the reasons which apply to certain practical problems. There may, for example, be some scope-affecting considerations to the effect that though Colins promise [to act in furtherance of the well-being of his son] apparently purports to exclude all the reasons not affecting his sons interests it does not in fact validly exclude considerations of justice to other people.76
Since, on Razs theory, a rule need not preempt every reason, it is possible for someone to treat the rule as an exclusionary reason and deliberate about certain reasons for non-conformity just in case those reasons do not fall within the exclusionary scope of the rule. Kramer believes that my argument against the necessity version of inclusive legal positivism ignores this possibility. Morality can serve as a necessary condition of legality in a way consistent with the peremptory nature of motivational guidance, provided that the moral reasons conditioning legality fall outside the exclusionary scope of the primary legal rules. To return to the example in the previous section, a judge may treat the primary rules passed by Congress as peremptory reasons and nonetheless deliberate about the consistency of the rules with fundamental rights just in case such reasons are not preempted by the primary rules enacted by Congress. The reasons conditioning legality may not, of course, fall outside the exclusionary scope of the rules, in which case deliberation would interfere with the motivational potential of the rule. Kramer does not tell us how to determine the exclusionary scope of the rule, but I suspect that this does not matter all that much to him. For if it were possible that the primary legal rules do not preempt the reasons conditioning legality, then the argument I offered to show that the necessity version is incapable of accommodating the motivational guidance function of primary legal rules would be fallacious. Kramers response is very clever and might be useful to any inclusive legal positivist who permitted rules to have flexible scopes of preemption.77
75. Kramer, supra note 9, at 90. 76. Joseph Raz, PRACTICAL REASONS AND NORMS (2nd ed.), 40 (1990). 77. One wonders how Raz himself would deal with Kramers objection, given that Raz has famously argued that inclusive legal positivism is incompatible with the preemptive nature of legal rules.
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However, I do not think that Hart is one of them.78 Consider Harts description of a command: [T]he expression of a commanders will that an act be done is intended to preclude or cut off any independent deliberation by the hearer of the merits pro and con of doing the act.79 No mention is made of an exclusionary scopethe command cuts off any independent deliberation of the merits. Authoritative directives are not a way to silence only some deliberationthey put an end to all questions about whether conformity is advisable.
Indeed the word peremptory in fact just means cutting off deliberation, debate, or argument and the word with this meaning came into the English language from Roman law, where it was used to denote certain procedural steps which if taken precluded or ousted further argument. If we remember this we can call the reasons which the commander intends his hearer to have for action peremptory reasons.80
It might be thought implausible to claim that rules have scopes that are universally exclusionary. Surely, it would be argued, no rule has absolute force, that is, must be followed no matter what the reason. If a commander orders his troops to complete a ten mile training hike, he surely does not intend for them, nor would it be rational, to complete the hike come-whatmay, e.g., if they are suddenly ambushed, if the commander is captured by the enemy and must be rescued, etc. The order, one might argue, does not exclude reasons having to do with the safety of the commander or his troops. It simply excludes conflicting reasons of self-interest or beliefs concerning alternative methods of training. I do not think, however, that Hart would find such an objection persuasive. The defeasibility of an orders requirements can be explained in terms of the orders applicability conditions. The commanders order carries with it a set of implicit exceptions, e.g., the troops are required to complete the ten mile hike unless they, or their commander, are in serious danger. Consider, in this regard, Harts discussion of promising:
We promise to visit a friend the next day. When the day comes it turns out that keeping the promise would involve neglecting someone dangerously ill. The fact that this is accepted as an adequate reason for not keeping the promise surely does not mean that there is no rule requiring promises to be kept, only a certain regularity in keeping them. It does not follow from the fact that such rules have exceptions incapable of exhaustive statement, that in
78. Hart does mention in Commands and Authoritative Reasons that his analysis of authoritative directives was inspired by Razs work on exclusionary reasons. However, he does not say that his theory is the same as Razs. Rather, he says: But I dont think I should have seen the full importance of Hobbes remarks on these topics had I not had the benefit of the work of Joseph Raz on what he terms exclusionary reasons which resembles in many respects the notion I have taken from Hobbes. Hart, supra note 73, at 244 (emphasis added). 79. Id. at 253. 80. Id. at 25354.
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SCOTT J. SHAPIRO
every situation we are left to our discretion and are never bound to keep a promise.81
There is, thus, no need to explain the defeasibility of promises by using the technical concept of a partially exclusionary scope. Such cases can easily be explained in terms of the familiar notion of applicability conditions. I think it is a mistake, therefore, for Kramer to equate Harts peremptory reasons with Razs exclusionary reasons. They have a very similar practical force, but they are not same.82 And since peremptory reasons have universal scopes, no one can deliberate about the merits of following a rule and still treat the rule as a peremptory reason for action. Kramer might respond, as Himma did before, by suggesting that Hart modify his theory of rules so as to save his version of positivism from incoherence. I do not think, however, that switching conceptions would be so simple a matter. For Harts theory of legal identity would unravel if he were to adopt a conception of rules that permitted partially exclusionary scopes. According to Hart, the identity of a legal system is fixed by its rule of recognition. Because the rule of recognition is a duty-imposing rule, it follows that a rule is a member of a certain legal system only if a judge is under a duty to apply such a rule in a case that comes before her. However, if legal rules were permitted to have partially exclusionary scopes, a judge might be under a duty to apply a rule in some cases, but have discretion to apply the same rule in other cases. The latter would obtain whenever the rule, even though applicable, is defeated by reasons that fell outside its (partially) exclusionary scope. The duty of a judge to apply applicable rules would thus be indeterminateit would obtain in some cases and not in others. Accordingly, the identity of any legal system would be indeterminate. One might try to patch up this problem by, in turn, modifying Harts theory of identity. The rule of recognition would not impose a duty on judges to apply certain rules even though they are applicable. Rather, the rule of recognition would impose a duty to apply certain rules when they are applicable and they are not outweighed by the set of unexcluded reasons. Once one adopts such a position, however, the problem of specifying the exclusionary scope of a rule becomes acuteone becomes obliged to provide an account of how to demarcate the set of excluded from the set of unexcluded reasons. Moreover, one is required to give an account of the weight of rules themselves, so that a judge can determine whether the unexcluded reasons defeat the rule. Finally, one must suppose, consistent with the Conventionality Thesis, that most judges arrive at the same judgments about the scope and weight of rules, so that one can plausibly claim that most judges are actually conforming to the rule of recognition.
81. Hart, supra note 6, at 139 (emphasis added). 82. One might see a peremptory reason as a limiting case of an exclusionary reason.
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Much would need to be done if Hart were to adopt a different conception of rules. I am not suggesting that such a task would be impossible. I think, however, that it would not be as easy as it might first appear, and I doubt that the resulting theory would be all that attractive.
VIII. FUNCTIONALISM AND PRACTICAL DIFFERENCE According to the Practical Difference Thesis, legal rules must in principle be capable of securing conformity by making a difference to the practical reasoning of agents. In my previous article I argued that Harts commitment to the Practical Difference Thesis was predicated on a deeper commitment to what I called a functionalist conception of law.83 By a functionalist conception, I meant a type of jurisprudential theory that, among others things, ascribes a function to both legal systems and legal rules and admits, to some degree, that the existence and design of legal systems and legal rules are amenable to functional explanations. As described, there are as many functionalist theories as there are functions that one can impute to the law. In Harts case, the function of legal systems and legal rules is the guidance of conduct, and the guidance of conduct is the reason that legal systems and legal rules exist and have the form that they have. The connection between Harts Functionalism and the Practical Difference Thesis might be expressed in the following manner:84 In order for an entity to have a function, there must be some event that it is supposed to bring aboutsome event that counts as the fulfillment of its function. In the case of a rule, in order for it to have the function of guiding conduct there must be some action that it is supposed to bring aboutsome action the performance of which counts as the guidance of conduct. A rule guides conduct only if conformity to the rule is secured by the rule making a difference to the practical reasoning of an agent. Hence, if a rule is to have the function of guiding conduct, then the action that it is supposed to bring about is one in which the rule secures conformity by making a difference to the practical reasoning of an agent. However, if a rule is in principle incapable of securing conformity by making a difference to practical reasoning, then there can be no action in which conformity is secured in this manner. Therefore, if a rule is in principle incapable of making a practical difference, then there can be no action that the rule is supposed to bring aboutno action that counts as the fulfillment of the rules guidance function. It follows that no rule that is in principle incapable of making a practical difference is one that has the function of guiding conduct. How-
83. Shapiro, supra note 3, at 5025. 84. I would like to thank Mark Greenberg for helping me see that a previous attempt to make out this connection was ill-advised.
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ever, since all legal rules have, as their function, the guidance of conduct, no rule that is in principle incapable of making a practical difference can be a legal rule. Hence, the Practical Difference Thesis. Neither Himma nor Waluchow challenge my contention that the functionalist conception of law that I ascribed to Hart entails the Practical Difference Thesis. They do, however, reject my contention that he is a functionalist in my sense. On their interpretation, the most that can be said about Harts theory is that he ascribed the guidance function to law, not lawsto the institution, not to its rules. As for the textual evidence I used to support my view, Himma argues that the evidence is at best ambiguous. [M]any of the passages that seem to suggest a commitment to functionalism are consistent with both versions of the Functionalist Thesisand hence cannot help to resolve the issue of which sense of the Functionalist Thesis, if any, Hart accepts.85 In a footnote, Himma is more candid: I am being generous here: the word law in the sentence law has an essential function is more plausibly construed as referring to the law as an institution. Indeed, we would not generally refer to the function of legal norms by talking in terms of laws essential function.86 According to Waluchow, it is fallacious to conclude that legal rules have, as their function, the guidance of conduct from the fact that legal institutions have, as their function, the guidance of conduct.
[I]t fails to follow from the fact that a function is attributable to the legal system that it must be attributable to any and all laws within the system. This no more follows than it follows from the fact that the function of the army is to defeat the enemy that the function of Private Bailey, chief cook and bottle-washer, is to do the same.87
If Waluchow and Himma were right about Harts functionalism, then we would have no reason to saddle him with the Practical Difference Thesis. Hart could continue to subscribe to the inclusive legal positivism without fear of incoherence. As Himma puts the point:
Now this suggests that law as an institution can succeed in performing its essential function of guiding behavior even if there are individual laws incapable of providing epistemic or motivational guidance. For as long as there are a sufficient number of legal norms that provide the right kind of guidance, the legal system as a whole is capable in principle of guiding conduct. What ultimately matters, as far as the existence of a legal system is concerned, is that laws are generally efficaciousand it is possible for the laws to be generally efficacious even if many of them are incapable of providing the kind
85. Himma, supra note 9, at 33. 86. Id. at n.30. 87. Waluchow, supra note 9, at 76.
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of guidance that Shapiro believes is required by the Practical Difference Thesis.88
While I agree with Himma and Waluchow that one cannot, in general, conclude that a part has the function F just because the whole has the function Fthis is a form of the fallacy of divisionin the case of legal rules and legal institutions such an inference is sound. For legal rules are the means by which legal systems guide conduct. We can say that the function of legal rules is to guide conduct because they have been produced by legal institutions in order to guide conduct. That Hart would have accepted this analysis is confirmed, I believe, by considering the ambiguous passage of Harts cited by Himma: I think it quite vain to seek any more specific purpose which law as such serves beyond providing guides to human conduct and standards of criticism of such conduct.89 Himma is right that the word law in the first half of this sentence refers to the institution, not the rules themselves. But notice the function attributed: It is the function of legal institutions to guide conduct by means of the rules it provides. If legal institutions guide conduct by means of their rules, then it is the function of those rules to guide conduct. In fact, in the second half of the sentence, Hart refers to legal rules as guides to human conduct. It is hard to imagine a less ambiguous expression of the sort of functionalism that I have been attributing to Hart. Indeed, the idea that legal rules have, as their function, the guidance of conduct is one of the core features of Harts theory of law. Recall, for example, Harts rejection of Kelsens doctrine of norm individuation.90 According to Kelsen, all laws should be understood as norms directing officials to impose sanctions under certain circumstances. Hart, however, believes that such a reduction distorts the function that legal rules are meant to serve. The primary function of duty-imposing rules, Hart insists, is to guide the conduct of ordinary citizens. Such rules set out standards of acceptable conduct to which all are expected to conform. Rules directed at legal officials to impose sanctions come into play only when the primary function of the legal rules has broken down, i.e., when they have failed to guide conduct. To reformulate every law as though the norm-subjects were legal officials would be to misidentify the primary legal audience, namely, those who are expected to guide their conduct by law. Many more illustrations of Harts functionalist conception of rules could be given. It underpins everything from his rejection of the predictive theory of legal rules to his insistence that power-conferring rules are distinct from duty-imposing ones. To repudiate the idea that legal rules have, as their function, the guidance of conduct would be tantamount to repudiating Harts theory of law.
88. Himma, supra note 9, at 31. 89. Id. at 249 (emphasis added).
170 IX. CONCLUSION
SCOTT J. SHAPIRO
Rejecting functionalism is not an option for Hart. He is stuck with the Practical Difference Thesis. Similarly, he cannot give up the Conventionality Thesis. But he can repudiate inclusive legal positivism. And, if I am right, he must. All is not lost, however, for other inclusive legal positivists. Perhaps the least radical option for them would be to reject the Conventionality Thesis. If primary legal rules can be generated by something other than secondary rules, then moral rules that lack pedigrees might make a practical difference for judges in adjudication. More drastically, inclusive legal positivists can reject the Practical Difference Thesis by rejecting Harts functionalism. If legal rules do not have as their function the guidance of conduct, or that, in the normal course of events, legal rules serve their function, then there would be no reason to believe that every legal rule must in principle be capable of making a practical difference. Recently, Jules Coleman has taken such a tack. While he agrees that legal rules often function as guides to conduct, he does not believe that they must do so in order to count as legal rules. A community might, Coleman imagines, want their shared morality embodied institutionally in their legal system. This conception of law substantially deviates from Harts jurisprudence. That does not make it wrong, only different. My point has been that a Hartian legal theory becomes inconsistent by embracing inclusive legal positivism. It is because I find the Conventionality and Practical Difference Theses, coupled with a functionalist orientation to the law, so appealing, that I am sufficiently convinced that I do not want to be an inclusive legal positivist. But I readily concede that I have no way of showing that every version of inclusive legal positivism is incoherent. If someone has an impossibility theorem, I would love to see it. Until that time, however, all we can do is examine every new model as it rolls off the assembly line and see whether it works.

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Legal Theory, 6 (2000), 127170. Printed in the United States of America Copyright Cambridge University Press 13523252/00 $9.

LAW, MORALITY, AND THE GUIDANCE OF CONDUCT

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

19. Himma, supra note 9, at 2123.

Taking the contrapositive of the consequent of (5) gives us:

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

Law, Morality, and the Guidance of Conduct

of guidance that Shapiro believes is required by the Practical Difference Thesis.88

170 IX. CONCLUSION

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