Oxford Journal of Legal Studies, Vol. 20, No. 4 (2000), pp.

703722

Positivisms Stagnant Research

Programme
DAVID DYZENHAUS

And thus I have brought to an end my Discourse of Civill and Ecclesiastical Government,
occasioned by the disorders of the present time, without partiality, without application,
and without other designe, than to set before mens eyes the mutuall Relation between
Protection and Obedience; of which the condition of Humane Nature, and the Laws
Divine (both Naturall and Positive) require an inviolable observation.1

1. Introduction
The reader who can get past the irritating eccentricities in Matthew Kramers
defence of legal positivism will find it densely and intelligently argued.2 But I
will argue here that the failure of that defence illustrates the contention signaled
in the titlethat positivism, to use philosopher of science Imre Lakatoss term,
is a stagnant research programmeone which no longer works since it no

A review of Matthew Kramer, In Defense of Legal Positivism: Law Without Trimmings (Oxford: Clarendon Press,
1999) vii, 313. All citations to the book will be by page number alone.
Professor of Law and Philosophy, University of Toronto. I thank Jeremy Horder, Avner Levin, Cheryl Misak,
and Tony Sebok for comments on drafts of this essay.
1
T. Hobbes, Leviathan (1985) 728.
2
Here is a small sample of the eccentricities. Kramer has a tendency to use archaic and obscure words, for
example, avouch (at 22, n 4), and flagitious (at 180). He is often grossly dismissive of other authors. His chapter
on Michael Detmolds work is so consistently patronizing that one wonders why he chose to include it. He adopts
a generally condescending tone towards Ronald Dworkin (at 1289), suggesting often that Dworkins arguments
are easily dismissed but can be resurrected in stronger form by a Dworkinian (i.e. Kramer doing Dworkins job
better). But the resurrected arguments are more often than not closer to Dworkins own than Kramers caricatures.
Lon L. Fuller is accused among other things of having oered a narrow and tendentious conception of law . . .
buttressed with sterile ipse dixits (at 62). Does Kramer seriously think it would mitigate his assault on Stephen
Perry to pronounce ex cathedra: Since I shall be unremittingly critical of Perrys essay, I should note that it is an
intelligent and stimulating work. I should mention also that I have admired some of his other work (at 240, n
8)? (Perry is variously accused of a portrayal of H.L.A. Hart that is misleading at best (at 243), of using arguments
that are otiose (at 244), objectionable and unfair (at 246), and dubious (at 247).) Finally, Kramers
dismissiveness is matched by his confidence in his own abilities. He claims that he can deal in a quite
terse fashion with Deryck Beyleveld and Roger Brownsword, since he has elsewhere sustainedly refuted their
philosophical mentor, Alan Gewirth (at 4, n 3). More serious is that he levels the accusation that far too much
of recent jurisprudence has consisted in debates that involve the construction and demolition of straw men by
theorists who thus obscure the subtleties and resourcefulness of the positions which they are condemning (at 13).
While he of course claims that his book is free from this fault, it will be plain from my discussion of Joseph Raz,
and the examples are easily multiplied, that this is far from the case.
2000 Oxford University Press
704 Oxford Journal of Legal Studies VOL. 20

longer accounts appropriately for the data of legal practice.3 I will also argue
that there is an anti-positivist position far stronger than any Kramer considers.

2. Positivisms Research Programme

In his famous essay in the 1958 Harvard Law Review, H.L.A. Hart claimed that
the tradition of legal positivism could be understood as the history of an
ideathe need to distinguish, firmly and with the maximum of clarity, law as
it is from law as it ought to be.4 Since Hart proposed a theory of law for legal
positivism that sought in other respects to modify significantly the theories of
his predecessors, the idea that there is no necessary connection between law and
moralitypositivisms Separation Thesisis rightly regarded as the hallmark of
a positivist legal theory.
Hart firmly disengaged positivism from the utilitarian moral theory of Jeremy
Bentham and John Austin and from their Hobbesian command theory of law.5
He rejected the command theory, first, because he thought it evident that there
is more to legal order than the compulsion of a command backed by a threatened
sanction. Law, he said, is surely not a gunman situation writ large.6 Second,
he pointed out that the command theory of law seems to put the sovereign
outside the law which does not account for the fact that nothing which legislators
do makes law unless they comply with fundamentally accepted rules specifying
the essential law-making procedures.7
Harts own claim was that the key to understanding a legal system lies in the
notion of certain fundamental rules accepted by legal ocials as specifying
law-making procedures. In later work, he developed the idea of fundamental
acceptance into an account of the rule of recognition.8 The rule is the most
fundamental constitutional rule of a legal system, accepted by at least the ocials
who administer the law of the system as specifying the criteria of validity which
certify whether or not a suggested rule is a rule of the legal system.
In Harts view, there are two aspects to ocial acceptance. First, there is the
normative aspectthe ocials adopt an internal point of view or perspective
they accept that they are under an obligation to follow the rule and they manifest
this acceptance both by following the rule and by criticizing deviations from it.

3
For an account of Lakatoss use of this term, see W.H. Newton-Smith, The Rationality of Science (1981) ch
IV. As those familiar with Lakatos will recognize, I rely in what follows on some of the key insights in Lakatoss
account of the rise and fall of theories. However, I avoid explicit reference because of the complex dierences
between theory success in natural science and in the description of social practices.
4
H.L.A. Hart, Positivism and the Separation of Law and Morals, reprinted in Hart, Essays in Jurisprudence
and Philosophy (1983) 48 at 50.
5
Hart hardly addressed Hobbess place in the positivist tradition, usually preferring to treat the tradition as if
it began with Bentham. Clearly, this was because of his unease about the fact that Hobbes denied the Separation
Thesis. See Hart, Essays on Bentham: Jurisprudence and Political Theory (1982) esp. chs 6, 9, and 10.
6
Above n 4 at 59.
7
Ibid.
8
See H.L.A. Hart, The Concept of Law (1994; 1st edn, 1961), with a Postcript edited by P. A. Bulloch and J.
Raz, at 8996, and ch 6. All references to Concept of Law will be to the 1994 edition, with specific references to
the Postcript to Hart, Postcript.
WINTER 2000 Positivisms Stagnant Research Programme 705
Second, there is the factual aspectthe content of the rule is what was in fact
accepted in the past by ocials as constituting its content.
It might seem that an account which relies on a notion of ocial acceptance
must involve some moral component. But through his emphasis on the factual
aspect of the rule of recognition, Hart thought he could resist introducing a
moral component into the account. He remained adamant that positivism should
retain what he took to be its key ideathe Separation Thesis.9 Hart also thought
that Bentham and Austins reason for supporting that thesis held good. It will
enable men to see steadily the precise issues posed by the existence of morally
bad laws, and to understand the specific character of the authority of a legal
order.10
Kramer follows Hart in taking the hallmark of positivism to be the thesis that
law and morality are strictly separable (at 1). Like many positivists writing
today, he prefers the term separability to separation as it seems to capture
better Harts claim that there is no necessary connection between law and morality.
That is, the claim is not that morality and law never coincide. And, as we will
see below, the idea that at stake is a Separability rather than a Separation Thesis
is also preferred by many positivists today because it leaves open the possibility
that in certain legal orders it may be the case that moral criteria not only figure
among the criteria for the validity of law, but also determine valid law.11
Kramer usefully suggests that the Separability Thesis embodies three dierent
contrasts. First, there is the contrast between the moral and the immoral and
here the positivist claim is that the norms implemented by a legal system can
be evil in their content or in their eects. Second, there is the contrast between
morality and factuality, where the positivist claim is that the process of
ascertaining the law does not perforce involve moral judgments. Third, there is
the contrast between morality and prudence, where the positivist claim is that:
ocials who care only about their own interests in securing the ecacy of their grip
on power will typically have solid reasons for adhering quite consistently to the rule of
law. As a consequence, the ideal of the rule of law cannot be correctly deemed an
intrinsically moral ideal. (at 23)

And he correctly notes that debate in recent years has tended to focus more on
the second and third contrasts, than on the contrast between morality and
wickedness (at 4).
However, Kramer is wrong to think that one has to infer that the shift in focus
from the first contrast to the second and third came about because important
anti-positivists such as Ronald Dworkin and Lon L. Fuller for the most part
recognized the futility of trying to show a connection between law and morality,
where morality is contrasted with wickedness (at 4). The shift was at least as
9
Above n 4 at 50.
10
Ibid at 53. And above n 5, esp. chs 6, 9, and 10.
11
Kramer amplifies this thesis later, arguing that the strict separation is between law and both critical morality
and conventional morality, where critical morality consists of those values and standards whose force depends on
their correctness and not on their having been embraced by most people in this or that community (at 210).
706 Oxford Journal of Legal Studies VOL. 20

likely due to the fact that anti-positivists sensed that concessions by positivists
in regard to the second and third contrasts put positivism on a slippery slope to
concessions in regard to the first contrast. And it is the first contrast which much
more than the others captures the essence of positivism seen as the history of a
particular idea. Put dierently, the first contrast is the one which describes the
hallmark of legal positivism. The second and third are much more in the way
of attempts by legal positivists to show that positivism can cope with apparent
anomalies for its theory of law which arise from legal practice, that is, with
particular legal practices which seem inconsistent with the Separability Thesis.
The second contrast drawn by Kramer pertains to what we can think of as an
Identification Thesis, the thesis that a determination of what law is does not
depend on moral criteria or argument. It is important to see that the Identification
Thesis and the Separability Thesis do not entail each other. Hobbes, for example,
seems to reject the Separability Thesis since he holds that the sovereigns
commands must be taken by legal subjects as representing right reason. But he
thinks it very important that the contents of those commands are determinable
without recourse to moral argument.
Conversely, as already suggested, there are contemporary positivists who
hold that if judges are required by the rule of recognition to refer to moral
criteria, and if the moral criteria do determine an answer, that answer is fully
determined by the law. Such positivists hold the Separability Thesis because
they say that it is contingent whether a legal order will incorporate moral
criteria among its criteria for the validity of law. But they also allow the
possibility that often the Identification Thesis does not apply. They say that
in legal orders which do incorporate morality the identification of law might
depend on moral criteria.
I will refer to positivists in this group as soft positivists, though they are also
referred to in the literature as incorporationist or inclusive positivists. The
last two labels signal these theorists way of acknowledging the fact that moral
criteria are often explicitly or implicitly incorporated into law. But the labels do
not capture the division in positivism accurately, because the other camp in
positivism recognizes this fact but insists on retaining the Identification Thesis.
It follows for this other campthe hard positiviststhat the application of
moral criteria is by definition an act of judicial discretion or legislation. Moreover,
the adjective soft aptly conveys the tenor of my argument that when the
Identification Thesis is dropped, positivism turns to mush.
The majority of positivists writing todayincluding Kramer (e.g. at 199)
belong to the soft camp. Indeed, Hart ocially joined the soft camp in his
posthumous Postcript to The Concept of Law, leaving Joseph Raz as the main
defender of hard positivism. This represents a significant departure from the
positivist tradition as Hart understood it in 1958, where he considered Bentham,
Austin, and himself to hold both the Separability and the Identification Theses.
Nor do I think that Hart departed from that position in 1961 when he published
The Concept of Law, even if there is a plausible case to be made that soft positivism
WINTER 2000 Positivisms Stagnant Research Programme 707
is not inconsistent with that work.12 For both in 1958 and 1961 one of Harts
main aims was to make positivism more sophisticated while showing that that
sophistication did not in any way threaten the distinction between law as it is
and law as it ought to be. I suspect it seemed at that time that a decision which
requires judgment about what moral criteria require is necessarily a decision
based on a sense of what law ought to be.
What then was the anomaly to which the Identification Thesis responded? In
Positivism and the Separation of Law and Morality, Hart pointed out that the
Separability Thesis had been contested traditionally on two terrains, the terrain
of the interpretation of particular laws and the terrain of legal orders taken as
systems. The Identification Thesis responds to a critique on the former terrain
put by the Legal Realists.
The Legal Realists argued that adjudication is at bottom a process of value-
laden judgment where the judgment is not itself determined by the law, and
hence it follows that law is inherently value laden. In other words, if one looks
at the practice of adjudication, it is obvious that judges in deciding the law must
rely on value judgments. But, said the Legal Realists, positivists both hold that
law is determined by formal or deductive tests and deny a necessary connection
between law and morality.
Hart responded first by pointing out that it is a mistake to equate determination
by value with determination by morality. But more important was his claim that
positivists, far from being formalists when it comes to adjudication, hold that
adjudication is for the most part highly discretionary. And that claim depended
on an assertionthe defence of which he did not undertake at the timethat
laws authority is confined to its determinate content, to the core whose content
is determinable without resort to evaluative judgment. In Concept of Law, he
undertook that defence in his argument that the authority of law resides in the
fact that the rule of recognition has certified a particular rule as valid.
Hart regarded discretion as a fact of legal life, but also did not think it
necessarily regrettable. Some amount of uncertainty in the law is tolerable, even
a good thing since it permits judges to adapt the law to changing circumstances
without drawing on the scarce resource of legislative reform. Thus he raised no
objections, either legal or political, to the fact that in a common law legal order,
judges have the flexible tool of distinguishing the case before them from precedent
on the facts, or to the fact that certain judges will have the authority to change
settled law, thus making some settled law constantly subject to their evaluative
judgment. Nor did he object to legal orders where judges are given the authority
to test the validity of law by reference to constitutionally entrenched, broadly
stated, moral standards, which makes large parts of the core potentially subject
to judicial overrule. The upshot seemed to be that adjudication is so shot through

12
See Hart, Postcript, above n 8 at 247, referring to his comments in Concept of Law, above n 8 at 72. As
Leslie Green has pointed out, Hart was in fact responding at this point to the Austinian view that law is the
product of an uncommanded commander; see L. Green, Review of the second edition of Concept of Law, 94
Michigan L Rev 1687 at 17056 (1996).
708 Oxford Journal of Legal Studies VOL. 20

with discretion that the work done there which complies with the Identification
Thesis does little more than identify the law, and then only perhaps the sources
of law, relevant to the decision.13
In sum, the way in which Harts legal positivism deals with the apparent
anomaly for its Separability Thesis generated by the practice of adjudication is
to suggest the irrelevance of that practice to its thesis. Rather than revise the
Identification Thesis, positivists embrace its radical implications. This embrace
is very curious if one takes a longer view of the positivist traditionone which
does not treat Hart as its founder.14 At least two of the most important figures
in the positivist tradition, Hobbes and Bentham, would think that the whole
point of the Identification Thesis is lost in this embrace. For both of them, law
is not doing its jobnot fulfilling its political functionof eectively guiding
citizens if its content cannot be determined by tests consistent with the Iden-
tification Thesis.
It is of course true that Hobbes and Bentham understood the politics of that
function very dierently. For Hobbes, the Identification Thesis is important
because legal subjects are supposed to take the sovereigns judgment of right
and wrong as definitive of right reason, which means that laws content must be
identifiable without resort to moral considerations and arguments. This is the
whole point of Hobbess famous distinction between command and counsell in
chapter 26 of Leviathan. Hobbes identifies authority with commands, utterances
obeyed without expecting any other reason from the commander than that he
has made them, while counsell or advice provides to its addressee a reason for
him to weigh against other reasons.
For Bentham, in contrast, the sovereigns judgment is advice, though advice
which is presumptively very strongly weighted. Its content must be identifiable
without resort to moral considerations and arguments in order that subjects have
a clear datum which they can then evaluate. The ultimate decision whether to
obey or not is that of the individual, not of the sovereign. Although if there is
in place a properly functioning democratic legal order, with the sorts of institutions
for ongoing law reform Bentham envisaged, then subjects should generally obey
the law while criticizing it freely.
But despite their dierences about why one should adopt the Identification
Thesis, both Hobbes and Bentham agree that it is ultimately a thesis supported
by arguments of political morality. Their reasons, in other words, for proposing
it are substantive, in contrast with reasons which one might describe, without
assuming that these terms are in any way synonymous, as methodological,
descriptive, conceptual, or semantic. And it is precisely because their legal

13
See J. Raz, Dworkin: A New Link in the Chain, 74 Calif L Rev 1103 at 1107 (1986). And see the distinction
Jules L. Coleman relies on between identification of rules and their application in J. L. Coleman, Incorporationism,
Conventionality, and the Practical Dierence Thesis (1998) 4 Legal Theory 381.
14
It is a source of some puzzlement to me why Gerald Postemas path-breaking workBentham and the Common
Law Tradition (1986)did not force positivists to take the longer view. I suspect that the reason has to do with
the fact that, despite Postemas own sympathies for positivism, his work tends to support in some important
respects arguments subversive of contemporary positivisms methodological commitments.
WINTER 2000 Positivisms Stagnant Research Programme 709
theories are substantive that they can both advance accounts of what I will refer
to as institutional mistakes, ways of attempting to build legal order which should
be rejected for political reasons. Thus both consider the common law to be a
mistake because it gives a legal authority to judges whose source and exercise
undermine the Identification Thesis.15 And it must be the case for both of them
that any attempt to constitutionalize broad moral standards, and to give authority
to judges to test statutes against such standards, is the mistake of the common
law writ large.16
However, at least17 since Hart announced in Concept of Law that the positivist
project should be understood as both an exercise in analytical jurisprudence
and descriptive sociology,18 positivism has to some extent lost its substantive
moorings. The task of legal theory is thought to be conceptual or methodological
rather than substantive or political. And this reconception of the task has the
eect that positivist legal theory has to do without the idea of an institutional
mistake. That a legal order is composed in part by common law or by a charter
of rights and freedoms whose guardian is the judiciary becomes a fact to be
accommodated within a positivist theory of law, and not criticized because it is
in tension with a substantive political theory.
This very significant shift in the self-understanding of legal positivism is hardly
dealt with in positivist writing. The fullest treatment is, I think, in Harts
Postcript. And even there the account is quite sparse, designed to deflect
Dworkins charge that positivism without substantive moorings is merely se-
mantic. I will come back to this issue later. For the moment, I want to focus on
the dilemma in which this shift placed positivism.

15
Note that Bentham did not think that only statute law had authority. He was prepared to grant customary
law authority, as was Hobbes, because judges simply declared what customary law required. Benthams objection
to the common law is then, more precisely, the way in which it provides a resource to judges to bootstrap themselves
into authority by using the claim that the common law is customary in nature as cloak. Thus Bentham in attempting
to refute the common laws claim to be customary in nature hopes to turn the debate about the judicial role into
a political onedo we want judges to give themselves law-making power?
16
Legal positivists sometimes argue that the constitutionalization of broad moral standards is not open to the
bootstrapping objection sketched in the last footnote since a written constitution explicitly gives judges authority
and, moreover, the stamp of democratic legitimacy. See, for example, C. Forsyth, Of Fig Leaves and Fairy Tales:
The Ultra Vires Doctrine, the Sovereignty of Parliament, and Judicial Review (1996) 55 CLJ 122. But for
substantive positivists, the formal grant of authority is no less a political mistake because it was made by the
people. (Perhaps an analogy here would be the problem posed for a liberal theory of individual autonomy by the
example of the autonomous individual who wishes to sell himself into slavery.) For an exploration of the problems
which accrue to positivist positions like Forsyths, see D. Dyzenhaus, Form and Substance in the Rule of Law:
A Democratic Justification for Judicial Review in C. Forsyth (ed.), Judicial Review and the Constitution (2000)
141.
Soft positivists sometimes argue that the Identification Thesis is not undermined by the constitutionalized
incorporation of substantive moral criteria into the law. For example, when judges declare, say, a statute to be
invalid because it conflicts with a constitutional norm of due process, they do not have to evaluate the justification
for the particular statute since the question is simply whether the statute, with the positivistically identified content
it is has, conflicts with the positivistically identified content of the due process provision. See Coleman, above n
13 at 41415. However, this argument seems to me to fail on two counts. First, it does not seem to describe what
happens in any real example of constitutional adjudication. Second, at most, it is an argument against Joseph
Razs version of hard positivism, and not against the substantive, fully political positivist positions which are, on
my account, the true standard bearers of the tradition. I discuss Razs position and these issues below.
17
I believe that here as elsewhere the influence of Austin, himself influenced by the flowering of late 19th
century European conceptions of a scientific theory of law, is underestimated.
18
Above n 8 at v.
710 Oxford Journal of Legal Studies VOL. 20

Among the legal phenomena with which, according to Hart, legal positivism
had to deal is laws normativity, its claim to impose authoritative standards on
its subjects. According to Hart, the issue of normativity raised two special
problems for any account of the law as the commands of the uncommanded
commander, obeyed on pain of sanction. First, at least some of the laws
addressees will regard its standards as obligation-imposing, not just as commands
to which sanctions attach. Second, there are important legal forms to which no
sanctions attach, most significantly the rule of recognition.
We have already seen that Hart argues that the settled nature of the legal
practice of the rule of recognition makes it possible to understand its operation
without introducing some moral component which would threaten the Se-
parability Thesis. This argument responds to the second anomaly with which
contemporary legal positivism has had to deal. This anomaly consists in the fact
that legal ocials, represented usually by judges, will regard their rule of
recognition as morally justified. So to describe their normative attitude from the
inside, from the internal point of view, seems necessarily to admit a moral
component into the description. Put dierently, even if the rule of recognition
has a settled content, the fact that judges accept it as providing the criteria which
they should apply cannot be understood other than by supposing that they regard
it as legitimate. What is more, judges will often in their judgments give their
audience reason to suppose that they regard the rule as legitimate.
Joseph Raz has given this common-sense observation a philosophical founda-
tion, one which is required if the positivist equation of legal authority with the
operation of the rule of recognition is to go beyond a stipulative definition of
authority. According to Raz, the way an authority ordinarily establishes itself
over its subjects is to show that subjects will follow better the reasons applying
to them if they follow the authoritys judgment rather than their own. It follows
that the reasons given by the authority have to replace or preempt the underlying
reasons which supposedly in any case apply to the subjects of authority. The
laws claim to authority is always a claim then to legitimate authority, because
the law claims to supply reasons for action which in any case apply to its subjects.
It thus also follows that judges must at least give the appearance of accepting
the laws claim to legitimate authority since they do not merely decide whether
they themselves are bound by the law but also make statements which impose
obligations on others.19 Since Raz is a cognitivist or objectivist about morality,
he also can hold that nothing follows from the fact that the law necessarily claims
legitimate authority about whether its claim is in fact justified.
Hart admits that Razs argument might seem to make good sense of his own
initial claims about what was involved in ocial acceptance of the rule of
recognition and that to confine acceptance to something very weak might seem

19
For the analysis of authority see J. Raz, Authority, Law, and Morality in J. Raz (ed.), Ethics in the Public
Domain: Essays in the Morality of Law and Politics (1994) 194; J. Raz, The Claims of Law, in J. Raz (ed.), The
Authority of Law: Essays on Law and Morality (1983) 28; and for the place of judges therein, see J. Raz, Legal
Validity, in J. Raz (ed.), The Authority of Law, ibid at 146, esp. 155.
WINTER 2000 Positivisms Stagnant Research Programme 711
to whittle down that notion implausibly. But of grave concern to Hart is that
Razs account follows Hobbess too closely and thus cannot establish enough
distance between contemporary legal positivism and Hobbess claim that there
is a prior moral obligation to obey the law.20 Hart maintains that there is no
need to take the extra step of supposing acceptance must be on moral grounds
just because, at least where the law is clearly settled and determinate, judges
might have many dierent reasons for accepting the law as authoritative. It is
thus unnecessary to refer to the moral reasons in the set of possible reasons.21
Kramers original contribution to the internal debate within legal positivism
is to go even further than Hart. He suggests that judicial acceptance of the rule
of recognition can be understood as motivated by only prudential or self-
interested reasons. It is interesting to note that Kramer, though he has a chapter
devoted to Raz, does not deal explicitly with Razs account of authority.22 That
he fails to deal with what many, including Hart, take to be Razs central
contribution to legal theory is evidence of the fact that, unlike Hart, he fails to
see the oddness of an account of normative authority which does not explain
the normative basis for accepting the claims of authority. Hart saw that there is
a very strong argument for insisting that the notion of the acceptance of some
consideration as an authoritative legal reason cannot stand alone.23 But we know
that Hart also thought that because the social practice of the rule of recognition
is one whose content is determinable in accordance with the Identification
Thesis, participants in it can eectively participate for a variety of reasons.24
As we have seen, Harts insistence on stopping short of an account of the
normative basis of the positivist conception of legal authority, of an account of
why judges should accept that account, is driven by two concerns. The first is
methodological, that to look beyond the fact that judges do work with such a
conception to why they work with one might import their moral perspectives
into the positivist conception of law, which might then cease to be general and
value free. The second is the concern about the path ending in a Hobbesian
notion of a prior moral obligation to obey the law, itself somehow part of the
concept of law. I believe that Hart considered the second concern to be more
serious than the first (though I will suggest below that he was wrong in this
respect). And he considered it more serious since he thought it possible to
describe a moral attitude or perspective neutrally but wished to avoid at all costs

20
Hart, Legal Duty and Legal Obligation in Hart, above n 5 at 127, 15761, and Commands and Authoritative
Legal Reasons, ibid at 243, 2434.
21
Ibid at 2628, esp. 2656.
22
Kramer indeed seems to think that Razs argument about judges and authority rests on the tenor of judges
remarks (at 834).
23
Hart, Commands and Authoritative Legal Reasons, above n 20 at 265.
24
See further Hart, Legal Duty and Obligation, above n 20 at 158: When a judge of an established legal
system takes up his oce he finds that though much is left to his discretion there is also a firmly settled practice
of adjudication, according to which any judge of the system is required to apply in the decision of cases the laws
identified by specific criteria or sources.
712 Oxford Journal of Legal Studies VOL. 20

the Hobbesian idea of prior moral obligation because that idea threatens the
Separability Thesis.25
In other words, Hart maintains that description does not entail endorsement.
Thus he is prepared to take on board the possibility that legal theory cannot
describe the internal perspective of central participants in the practice of law
without also describing their sense that there are moral reasons for obedience
to law. (Nevertheless, he does not in fact think that a description of such moral
views is required.) What troubles him is the claim that a description which
includes an account of the participants sense that there are moral reasons for
obedience is required because it is necessarily the case that participants must
suppose that the law claims moral authority. And the trouble here is that such
a claim must be based on an argument of political theory which leads to the
conclusion that there is a prior moral obligation to obey the law. If such an
argument is somehow part and parcel of the concept of law, the Separability
Thesis is on shaky ground.
There is, however, a serious problem here for Harts methodological position,
which also aects Kramers position. Suppose that the methodological positivist
finds that judges in a particular legal order divide between those who adopt a
positivistic account of legal authority, in which valid law is the law established
in accordance with the Identification Thesis, and those who adopt a Dworkinian
account, in which authority accrues only to those statements of the law which
are supported by a moral theory which justifies them. Is the methodological
positivist reduced to reporting that in this legal order there is controversy about
the nature of legal authority, which perforce then makes the concept of law itself
controversial?
Kramers response seems to be that his prudential account of judges and the
rule of recognition saves the day because there is at least the logical possibility
that there exists a legal order in which judges are motivated only by prudential
considerations, even if there is no actual legal order in which it is the case that
such judges are exclusively so motivated.26 But this response must fail. Even if
it were the case that Dworkinian judges were to be found in only one existing
legal order, say, that of the USA, there the methodological positivist would have
to concede that the concept of law in that legal order might not be the positivist
one since the concept of legal authority is a genuine issue within judicial practice.

25
Of course this second concern is even more heightened if, like Hart, one is not committed to cognitivism
about morality. For Harts argument about the possibility of describing in a value-neutral fashion the value-laden
perspective of a participant in a practice, see Hart, Postcript, above n 8 at 2423.
26
This seems to be the burden of his response to Stephen Perry (at 239). Kramer says that Perry gives a
gravely misleading account of Harts internal viewpoint of legal ocials (at 2401). But this is because Kramer,
as I suggested in the text, and unlike Hart, does not appreciate the oddness of the Hartian account of authority.
It is that oddness that leads Perry to try to work out what further might support Harts position and his analysis
of Holmess bad man perspective as a participant perspective is most illuminating in this regard. Kramer thus
gets Perry badly wrong (at 241) by claiming that Perrys analysis commits him to holding that a participant
viewpoint encompasses anyone to whom the law gives reasons for action. Kramers counter-examplesincluding
the claim that Perry must believe that Kramers mother was a participant in the Balkan conflicts because those
conflicts gave her a strong reason to stay away from that part of the worldthus do not reflect in any negative
way on Perry.
WINTER 2000 Positivisms Stagnant Research Programme 713
Raz, as we have seen, makes no such concession and his steadfast attitude here
is what makes him a strong positivist.27 Indeed, the only way in which the
methodological positivist can avoid becoming a soft positivist is for one to take
a non-cognitivist stance in meta-ethics which one thinks must also be reflected
in the concept of law. For if judges are required by their rule of recognition to
apply moral standards, the only reason to deny a priori that their answers are
determined by law is if it is the case that their answers necessarily lack objectivity.
Hart happened to be a non-cognitivist. But he did not think that the correctness
of a theory of law should be made to turn on controversial questions of meta-
ethics. And so he could not, qua philosopher of law, rule out soft positivism.28
Raz, recall, does not oer an a priori reason for choosing between conceptions
of authority, nor for ruling out soft positivism. His reason is contained in a
substantive argument about authority. Moreover, that substantive argument
explains why judges must at least pretend to have reason to acquiesce in their
legal orders claim to possess legitimate authority. But that argument is substantive
only in so far as it goes beyond stipulation. Put dierently, it remains basically
methodological in that it explicitly refrains from advocating institutional reform
when legal institutions do not in important respects conform to its criteria.29
The triumph of methodology over substance is signalled when in place of
advocating reform to bring participants activity within the scope of authority,
one simply designates their activity as outside that scope. Thus while Raz argues
that legal authority must be capable of eectively guiding legal subjects by giving
them reasons for action the content of which can be determined in accordance
with the Identification Thesis, he also thinks that the Identification Thesis can
do very little work for judges. Cases which require interpretation of the law are
shot through with discretion because the Identification Thesis will not go much
beyond identifying relevant sources of law.30
Indeed, Razs substantive argument has the strong result that a judges decision
based on an interpretation of the very limited set of reasons which plausibly

27
See further J. Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison (1998) 4 Legal
Theory 249.
28
See Hart, Postcript, above n 8 at 2534.
29
I thus disagree to some extent with Stephen R. Perrys description of Raz in an article to which the argument
of my own essay is heavily indebted; see S. Perry, Harts Methodological Positivism (1998) 4 Legal Theory 427
at 4646.
30
At least since Hobbes (see Hobbes, Leviathan, ch 26 at 3201), positivists have sought to deal with this
problem by pointing out that the subject can get an authoritative ruling from a judge even if the law does not
supply such a ruling. For Razs argument in this regard, see Authority, Law, and Morality, above n 19. There is,
however, something odd about the positivist slippage from the claim that the authority of the law is largely to do
with eective guidance for subjects to the claim that it does not matter if the law cannot fulfil its role since judges
can. Since Hobbes wishes to minimize radically the role of judges in legal order, he is stuck with a serious tension
at this point in his argument. Other positivists have tried to cope with the tension by suggesting that as long as
judges and subjects are not awareor at least not fully awareof how (from the positivist perspective) the law is
riddled with gaps, judges will not get too big for their boots. See H. Kelsen, Introduction to the Problems of Legal
Theory (trans. B. Litschewski Paulson and S. Paulson) (1992; first published in 1934 as Reine Rechtslehre: Einleitung
in der rechtswissenschaftliche Problematic) 889. I discuss this aspect of Kelsens thought in D. Dyzenhaus, Legality
and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (1997) 1567. For Raz and probably
Hart as well, the tension is resolved, as it were, methodologically, since substantive concerns about the role of
judges in legal order are the concerns of political, not legal, theory.
714 Oxford Journal of Legal Studies VOL. 20

animated a particular law is discretionary because the judge is resorting to

underlying reasonsthe reasons which underpinned enacting that law. He also
holds that judicial application of moral standards which the judge is under a
legal duty to apply is by definition discretionary even if it is the case that the
judge is someone who would come up with the right answer.
Other positivists have suggested that this last point is not strictly required by
Razs substantive account of authority. That account rules out only a judge going
into the reasons which animated the legal authoritys enactment.31 Suppose that
the constitution protects freedom of expression and a statute seems to conflict
with that protection. The answer to the question of constitutional validity might
require a judge to engage in moral argument. But an argument about what
freedom of expression requires is not necessarily the same as the argument for
having freedom of expression constitutionally protected. Legal authority would
do its work, in other words, if it were the case that the argument about what a
protected right of freedom of expression requires can be made without going
into the underlying reasons for that protection.
There is a practical reason why Razs account of legal authority will designate
as discretionary almost any instance of moral argument of the kind just described.
It is dicult to imagine a constitutional challenge on the basis of a right to
freedom of expression where a judge would be able to separate the inquiry about
what freedom of expression requires from the inquiry about why it was required.
But this practice-based reason is not Razs. And so it is worth asking what could
unite both his exclusion of resort to underlying reasons, which need not be moral
in nature, and his rejection of soft positivism, which is willing to grant legal
status to statements of what the law requires which turn on judgments about
what morality requires, whether these judgments are about underlying reasons
or not. What unites these two exclusions is clearly Razs sense that judges are
fully constrained by legal authority only when their judgments about the law are
not evaluative, whether the evaluation is of what prompted the law or of what
follows from the law.
Now the substance of the argument for accepting such a conception of
authority is that the point of authority is to substitute the law for the subjects
own reasons for action. And what justifies such a substitution is that its acceptance
will result in better service to the subjects interests than if he decided for himself.
But, as both Hobbes and Bentham saw, this substance is undermined the more
it is the case that when the law has spoken on an issue, one cannot determine
the content of what was said in accordance with the Identification Thesis. In
other words, if the argument is to be truly substantive, it must have institutional
implications which seek to make the reach of legal authority co-extensive with
the reach of law. If the role of law is to provide eective guidance for subjects,
but law aects subjects in a pervasive fashion without providing such guidance,

31
See Coleman, above n 13 at 41415.
WINTER 2000 Positivisms Stagnant Research Programme 715
then it is time for law reform and institutional law reform at that. Thus institutions
like common law courts or constitutional courts are suspect as viable ways of
implementing laws authority because they tend to undermine the authority of
law.
Raz turns out then, as I have already suggested, to be only a partly substantive
positivist. The substantive thesis of authority is confined by his methodological
commitment to describing legal orders as they are, not as they should be, which
leads to the peculiar conclusion that much of the practice of law is done outside
the scope of authority. The substance in the still fundamentally methodological
theory condemns it to practical irrelevance. And this conclusion is particularly
striking if, as one defender of hard positivism claims, hard positivists conceive
the function of law to have to do with the practical dierence that law makes to
the lives of those subject to it.32
If one option for contemporary positivismfor the hard positivistsis practical
irrelevance then positivism itself is not in a happy state. For the other option is
to turn mushy. A legal positivism which is purely methodological is one which
must accept wholesale the normative attitudes that travel with the conduct of the
central participants in legal practice. Any attempt to build into the methodology an
exclusion of moral components seems arbitrary, as can be seen from the fact
that Hart and Kramer want to exclude the moral component in judicial acceptance
of the rule of recognition, while they are willing to include moral standards
among the criteria of legal validity. A rather glaring problem here, one which we
saw Hart recognize in Essays on Bentham,33 is that the exclusion of the moral
component in judicial acceptance will work only to the extent that lawand the
content of the rule of recognition itselfcan be identified in accordance with
the Identification Thesis.
Of course, the exclusion of such moral components is not arbitrary for a
doctrine about the nature of law premised on the Separability Thesis. But to
adopt the Separability Thesis as a premise is to adopt a substantive positivism,
since, as in Hobbes and Benthams positions, it will be a conception of the
normative point of keeping law and morality distinct which drives the rest of the
legal theory. And neither soft nor hard positivists are willing to permit this.
That positivism has become a stagnant research programme is then the result
of Harts adoption of methodological commitments whose status and whose
relationship with substantive commitments have never been properly explored.
Positivism either condemns to theoretical irrelevance a significant chunk of legal
practicethe practice of adjudicationor deals with it by admitting the substance
of an anti-positivist position like Dworkins with a caveat that it is logically
possible that there exists a legal order in which such a position has no purchase.
In part, the problems which contemporary legal positivism encounters arise
from the fact that there exist Dworkinian judges; that is, judges who both reject
the Identification Thesis and who take their legal orders to be legitimate. To the
32
See S. J. Shapiro, On Harts Way Out (1995) 4 Legal Theory 469.
33
See text to nn 20 and 21.
716 Oxford Journal of Legal Studies VOL. 20

extent that legal positivism is driven by methodological commitments which

require taking into account the internal perspectives of important participants
in the practice of law, the existence of Dworkinian judicial attitudes throws into
question the very commitments which require that they be taken into account.
Hart, as we have seen, supposes that such attitudes could be described in a
value-neutral fashion. But the viewpoint or perspective constituted by such
attitudes presupposes a substantive understanding of the point of law, which is
in direct competition with legal positivisms concept, or, perhaps better put,
conceptions.
This last qualification is required because positivists will claim that un-
derstandings of the point of law, which inform theories of adjudication, operate
in a dierent conceptual space from theories of law. Positivism presents a theory
of law, not a theory of adjudication, though its theory of law has consequences
for any theory of adjudicationit is about how judges should exercise their
discretion.34
This claim is not only highly stipulative, it also one which strictly speaking
should be made exclusively by hard positivists. Moreover, the claim has to
contend with the fact that there exist judges whose attitudes towards adjudication
are even more problematic for positivism than those of Dworkinian judges.
Critics of legal positivism have often argued that there is a positivist equivalent
of Dworkinian judges, who regard their legal orders as legitimate but who accept
the Identification Thesis. Such judges adopt a very conservative view of their
role, claiming that even in the hardest of hard cases their task is to decide law
in accordance with a vision of the law that reduces it to plain facts about positive
law.35
Now it is of course the case that hard positivists will disown such judges, but
the question is whether they have the resources to do so. Hard positivists will
say that a correct understanding of positivism would cause all judges to see that
their decisions in hard cases take place in the relatively unconstrained area of
the penumbra. And soft positivists can argue that judges will lack discretion in
hard cases only if they are required to decide them in terms of genuine moral
criteria incorporated into law. But it is surely an interesting feature of legal
practiceone requiring explanationthat participants in the practice continue
to criticize others for their positivism, even when positivist theorists would like
to disown those criticized.
34
This claim is the one which has made it so dicult to assess Dworkins critique of positivism, since positivists
maintained that they were immune to any critique based on an account of adjudication. In Laws Empire (1986),
Dworkin sought to present positivism with a dilemma: either to confess to having a semantic account of law (and
thus a practically useless one) or to make explicit the political substance of the positivist position. My own view,
explored in this essay, is that positivists were themselves unable to make up their minds about how to respond to
this dilemma, but were saved from having to do so because of a problem Dworkin encounters in accepting the
positivist view of what is at stake in any challenge to the Separability Thesis. I deal with this issue in the last
section.
35
For an account of such judges, see D. Dyzenhaus, Hard Cases in Wicked Legal Systems: South African Law in
the Perspective of Legal Philosophy (1991). For a critique of my argument from the perspective of hard positivism,
see A. Fagan, Delivering Positivism from Evil in D. Dyzenhaus (ed.), Recrafting the Rule of Law: The Limits of
Legal Order (1999) 81.
WINTER 2000 Positivisms Stagnant Research Programme 717
There is a simple explanation, which is that such positivist judges are the true
heirs of substantive legal positivism. They attempt to make positivism relevant
to legal practice, to makeas I put it abovethe reach of legal authority co-
extensive with the reach of law. Their position is substantive in the double sense
which I think is required for a position to be properly substantiveit is based
in political morality and designed to have an eect on practice.
First, positivist judges adopt a version of a Hobbesian moral duty to obey the
law, whatever its content. Second, since such a version requires that law have a
content determinable in accordance with the Identification Thesis, they attempt
to make their decisions correspond to the requirements of such a thesis. Put
dierently, they attempt to make their institution one which serves an ideal that
guides the whole of legal order.
Contemporary legal positivism generally has nothing more critical to say to
such judges than it has to Dworkinian judges. Indeed, in its hard version it
leaves the terrain of adjudication to be contested between both kinds of judge,
while in its soft version it hitches a ride with the Dworkinians. However,
Kramers distinctive contribution to legal positivismhis prudential model of
adjudicationwill, at least on the most plausible interpretation of that model,
encourage positivist judges.
I say on the most plausible interpretation because, while Kramer presents his
model as a logically possible one, it also seems clear that he means it to operate
as a central case or paradigmatic account of judicial motivation. Indeed, we saw
that that his distinction between prudential and moral reasons is the third of the
contrasts, which he thinks arise from the Separability Thesis. And just as for
legal positivism in general, even in its soft versions, the central case of authority
is a rule whose content is determinable in accordance with the Identification
Thesis, so an idea of judicial motivation which seeks to explain why judges
should adopt such a view of authority must be regarded as the central case or
paradigm.
According to Kramer, when judges disapprove of deviations from a practice
of positivistic authority, their manifestations of disapproval will arise because of
the threat to the smooth working of a system through which the ocials enjoy
their privileged statuses and because of each ocials concern that a failure to
express apposite disapproval will itself trigger disapproval from his fellow ocials
(at 76). In addition, Kramer is anxious to argue that the positivist concept of
law need not necessarily account for the relationship between ultimate legal
authority and legal subjectsthe only reciprocal relationship necessary is between
law-creating and law-applying institutions.
It is dicult to imagine how judges who had this self-interested view of their
role would not band together against judges who thought their legal order should
be one which realizes certain moral ideals and who sought to find in the law
some purchase for making it so. The natural inclination of such judges would
be to find interpretations of the law that would placate or even please the majority
of their colleagues, especially the more powerful among them, as well as the
718 Oxford Journal of Legal Studies VOL. 20

political masters of the day. And where adjudication cannot deliver results that
accord strictly with the Identification Thesis, the only way to achieve their aim
while maintaining their prudential stance, is to find the best available proxies
for determinate legal authority. Kramers picture of judicial role is then a parody
of what even the sternest critics of positivism have attributed to it, since critics
have usually thought that positivist judges will suppose that there is at least a
Hobbesian justification for their stance. Nevertheless, it does serve to illustrate
the impasse in which contemporary legal positivism, caught between substance
and methodology, and without any clear view of their relationship, finds itself.
As I noted, Kramer shows that the Separability Thesis embodies three dierent
contrasts, the contrast between the moral and the immoral where the positivist
claim is that law need not be moral, the contrast between the moral and the
factual, where the positivist claim is that the identification of law need not turn
on morality, and the contrast between morality and prudence, where the positivist
claim is that the legal ocials on whose fidelity to law the legal order depends
need not care about anything beyond their own interests. And we have seen that
the phrase need not in the second and third contrasts is what makes Kramer
a soft rather than a hard positivist. We also saw that Kramer observes that anti-
positivists have by and large given up on the first contrast, concentrating their
critiques on the second and third.
Kramers observation is correct, but, as I mentioned, what he fails to see is
that pressure exerted on the second and third contrasts leads inexorably to
pressure on the first. The second and third contrasts are, at least as they have
developed in the hands of Kramer and others, part of positivisms ways of
warding o critiques based on anomalies with which positivists had to deal. In
other words, they are ways of protecting the hallmark of legal positivismthe
claim that there is no necessary connection between law and morality.
But because the status of the hallmark is so uncertain once positivism, under
Harts guidance, makes its methodological turn, it is no longer even clear what
it is being protected. It is only clear if one sees that what held together the
positivist tradition from Hobbes through Bentham, though perhaps stopping
short of Austin, was a Separation, not a Separability Thesis. While, as I said,
Hobbes and Bentham ascribed dierent normative aims to the Separation Thesis,
they held that thesis because of those aims. And that meant that for them the
Identification Thesis was not an attempt to cope with anomalies but part and
parcel of the Separation Thesis. Law should, on their view, be identifiable in
non-evaluative ways, which means that legal institutions which subvert the aims
which lead to this requirement must be reformed or abolished. For these
positivists law, as they conceived it, is an essential ingredient in establishing the
right relationship of reciprocity between ruler and ruled, as Hobbes tells us in
the epigraph to this essay. Judges play a role in sustaining that relationship by
adopting a view of law on the model of discrete commands of a legally unlimited
sovereign. That puts those subject to the law at the mercy of the sovereignall
WINTER 2000 Positivisms Stagnant Research Programme 719
that matters for judges is that they sustain the right relationship between law-
creating and law-applying institutions, but this is for the sake of the greater
goodthe relationship between ruler and ruled.36
Kramers book then sharpens a question which positivists have yet to answer
whether the modifications which Hart introduced to the positivist tradition were
indeed productive. The diculties he encounters, as (by his own admission (at
989, 217)) he finds himself uneasily perched between a retreat to Austinism and
a soft positivism which is little dierent from Dworkins model of adjudication, are
symptomatic of a more general positivist malaise. But, or so I will now argue,
the malaise is more generalit has infected most of legal theory.

3. The Malaise of Legal Theory

My diagnosis of a malaise in legal positivism might seem tendentious given that
legal positivists today form by far the biggest camp within legal theory. Indeed,
Dworkinthe most famous anti-positivist of the last centurysometimes seems
to have hardly any followers. But it would be very hasty to conclude that
positivism has triumphed over yet another opponent. For Dworkins critique of
positivism is so powerful that it forced positivism to shift debate in legal theory
to his terrainthe terrain of adjudication. Whether legal positivists are arguing
against outsiders or involved in some family dispute, the central issue seems to
be about the role of moral considerations in judicial interpretation of the law.
As Roberto Unger and Jeremy Waldron have noted, this shift has almost
altogether marginalized, even excluded, the legislature and its work as a topic
for the philosophy of law.37 Statutes are seen as pre-legal, political acts whose
only interest for legal philosophy is the way in which they disturb judicial
deliberations. The idea behind this vision is of quite ancient provenanceit is
the animating idea of the common law tradition. Of recent provenance, however,
is an almost wholesale conversion of positivists to this idea from a position in
which statutes were seen as the primary, even only, form of law. Where positivists
today dier from their critics is only in that they will deny that any particular
vision of justice is inherent in the law. Kramer thus shows by the enormous
investment of intellectual energy in a version of this denial that, somewhat
contrary to his own views on Dworkins merits, he has conceded most of what
was once distinctive about the family of positivist theories.

36
This point marks an interesting and important dierence between Hobbess and Razs theories of authority.
Razs theory holds that the authority is justified if, with some minor exceptions (solutions to co-ordination
problems), the authoritative judgment reflects the reasons which the subject in any case has. Hobbes, in contrast,
argues that the reason for submitting to authority is not that the particular reasons will be reflected which the
subject in any case has, but in order to permit a form of public reason to come into being. The subject of course
has reason to want that to happen, but that reason is one which transcends his sense of what reasons he has to
approve or disapprove of particular laws. Somewhat ironically, it might then turn out that Hobbess understanding
of authority provides the basis for a democratic theory of law.
37
See J. Waldron, The Dignity of Legislation (1999) and Law and Disagreement (1999); R. Mangabeira Unger,
What Should Legal Analysis Become? (1996).
720 Oxford Journal of Legal Studies VOL. 20

A related marginalization or exclusion from the province of legal philosophy is

the major change in the form of law in the last century. I think it is fair to say that
the central problem of the rule of law in the 20th century stemmed from changes
in the form of law with which legal theory has yet to deal, despite the early warnings
sounded to the common law world by A.V. Dicey and Lord Hewart.38
This is the growth in that century of the regulatory state, brought about by
legislative creation of administrative agencies, which are often hybrid in nature
since they combine legislative and adjudicative functions. That is, these agencies
can be given the task of developing the legislationthe policy mandatewhich
they are charged with implementing and the task of adjudicating conflicts which
arise about the interpretation of that legislation. Usually, the ocials who sta
these agencies will get their authority from a statute and then the question is
what are the limits set by the statute or by other sources of law, for example,
the constitution or the common law.
In hard cases about the scope of ocial authority, the statutory grant of
authority to the ocial will usually be couched in discretionary terms. The
ocial, or panel of adjudicators when it is an administrative tribunal that has to
decide, will either explicitly or by clear implication have been given authority by
the legislature to make such decisions. So for hard positivists, at least, it follows
that in this situationthe ordinary situation that faces common law judges in
judicial review within administrative lawjudicial discretion as to what the law
requires is piled on top of administrative discretion on the same issue. Hence
all that positivist legal theory can say about this situation is that it is shot through
with discretion.
But this is not a worry as far as hard positivism is concerned, since it does
not assume a division of power between the legislature, which makes the law,
the judiciary, which interprets it, and the administration, which implements it.
Since hard positivists have always maintained that judges make as well as apply
the law, what I have called the change in the form of law is for hard positivists
no change at all, but merely the addition of another hybrid body to many legal
orders. Hard positivism, then, has not had much to say about what I have
claimed to be a change in the form of law because on its own terms it did not
have to.
Dworkin has also not had much to say. But this change in the form of law
poses a more significant challenge to his legal theory since he assumes a strict
division of powers between legislature, judiciary, and administration whereby
the legislature has a monopoly on making law, the judiciary on interpreting the
law, while the administration merely implements the law.39
The two philosophers of law who did pay attention both to the phenomenon
of legislation and to that of the administrative stateF.A. Hayek and Lon L.

38
A.V. Dicey, An Introduction to the Study of the Law of the Constitution (10th edn, 1987; first published in 1885)
(introduced by E.C.S. Wade); Lord Hewart, The New Despotism (1929).
39
See R. Dworkin, Taking Rights Seriously (1977) vivii. Presumably, soft positivists would adopt a hard positivist
or a Dworkinian position, depending on the contingencies of the particular legal order.
WINTER 2000 Positivisms Stagnant Research Programme 721
Fullerare themselves for the most part marginalized in legal theory.40 Since
Hayeks understanding of the division of powers and of the role of judges in policing
the boundaries is quite similar to that of Dworkin, it would be a fruitful task to
work out their anities. This is especially so given Hayeks unremitting hostility
to the regulatory state which led him to regard it as an institutional mistake.41
Fuller is getting some more attention these days, as Kramers chapter-length
treatment of Fullers argument about an inner morality of law shows. But
Kramers treatment operates within the margins which exclude the phenomena
of legislation and administration with which Fuller was as much concerned as
he was with adjudication.42 And it is a fairly easy task to chop o select limbs
of a theory once it is placed in a bed of ones own making.
The salient dierence between Fullers position and the legal positivism of
Hobbes and Bentham is not, as Fuller sometimes claimed, that Fuller viewed
law as mediating the relationship of reciprocity between ruler and ruled while
the positivists did not. (Indeed, it is Hart and perhaps Kelsen who seek to
eliminate the issue of the reciprocal relationship of ruler to ruled from legal
theory, substituting for it the relationship between law-maker and legal ocials.)
Rather, the dierence between Fuller and the others is that he sought to show
how the principles which mediate that relationship are moral principles internal
to legal order. More precisely, the principles are available to laws subjects in a
way that enables them to call to account for their fidelity to law the legal ocials
with authority to make, interpret, and implement the law. And they are internal
because a legal order, in order to be such, has necessarily to incorporate the
principles. Thus the contrast is between a vision of law in which the principles
of reciprocity are necessary internal constraints on legal authority and one in
which the relationship of reciprocity is conceived in such a way that any principled
constraints are a priori ruled out, since criteria of legality are confined to those
which assist the eective operation of the Identification Thesis.43
The salient dierence between Fullers position and that of Dworkin is that
Fuller does not conceive these principles as part of a liberal list of substantive
moral standards. The principles are much more about the process of law than
about its products. Further, they have to do with questions of legal order as a
whole much more than with the interpretation of particular laws.
Here it is worth noting that contemporary positivists and Dworkin agree on
one very important issuethat the Separability Thesis is about whether law
necessarily incorporates a particular set of substantive moral standards. And it

40
See especially Lon L. Fuller, The Forms and Limits of Adjudication in Kenneth I. Winston (ed.), The
Principles of Legal Order: Selected Essays of Lon L. Fuller (1981) 86. F.A. Hayek, The Constitution of Liberty (1993).
41
Trevor Allans work in progress on the rule of law will be the first significant step on this path.
42
The same is true of Joseph Razs treatment of Hayek and Fuller in the well-known essay, The Rule of Law
and its Virtue in J. Raz (ed.), The Authority of Law, above n 19 at 210.
43
Although I will not explore this issue here, I regard Hobbes as much more ambiguous about the issue of an
inner morality of law than I suggest in the text. See on this point, M. Oakeshott, The Rule of Law in M.
Oakeshott (ed.), On History and Other Essays (1983) 119. Hart might have been similarly ambiguous when he first
articulated the idea in Positivism and the Separation of Law and Morals that law is not the gunman writ large
because legality somehow constrains political power.
722 Oxford Journal of Legal Studies VOL. 20

is worth recalling that the positivist critique of Fullerthat his principles of the
morality of law are mere principles of ecacyis one which Dworkin also voiced
in his third published piece.44
Kramer vigorously rehearses that critique in his attack on Fuller. Like Dworkin,
he argues that Fullers principles, including the principle of publicity, merely
require clarity about legislative objective and so are no constraint at all on a
shameless tyrant (chapter 3, especially at 701). What he fails to see, however,
is that for Fuller the principle of publicity is more complex. Publicity for Fuller
is not only about stating ones aims in public. Rather, publicity involves a
commitment to a process of reasoned justification by legal authority to those
subject to it. A public law is one which is the result of such a process.45 And in
general all of Fullers principles are best understood as instantiations of the more
abstract principles of participation and accountability, principles which can be
realized in very dierent ways within legal institutions with no thought that
judges have a monopoly on their guardianship.46
Fullers legal theory puts pressure mainly on the second of Kramers contrasts
the contrast between morality and factuality, where the positivist claim is that
the process of ascertaining the law does not perforce involve moral judgments.
And pressure is exerted in two waysfirst, by emphasizing that in issue is the
very production of law just as much as the ascertainment of its contentand by
arguing that the moral judgments are about fidelity to the principles of par-
ticipation and accountability. The claim that ocials who understand the ideals
involved in fidelity to this vision of law could be motivated purely by self-interest
(Kramers third contrast) is not sustainable.
But more important, the pressure then works its way back to the first contrast,
between the moral and the immoral where the positivist claim is that the norms
implemented by a legal system can be evil in their content or in their eects.
For Fullers challenge is to the very idea that all that is in issue is implementation
of norms, for the norms have themselves to be constructed in a way that respects
the inner morality of law, constructed, that is, through a public process which
complies with principles of participation and accountability. In sum, even if
Kramers defence of legal positivism against Dworkin were to succeed, it has yet
to confront Fuller.
44
R. Dworkin, Philosophy, Morality, and Law: Observations Prompted by Professor Fullers Novel Claim,
113 U Penn L Rev 672 (1965). See the Bibliography of Dworkins published works in S. Guest, Ronald Dworkin
(1991) 309.
45
In my view the key passage in Fullers work is where he suggests that when people are compelled to explain
and justify their decisions, the eect will generally be to pull those decisions towards goodness, by whatever
standards of ultimate goodness there are: L. L. Fuller, Positivism and Fidelity to Law A Reply to Professor Hart,
71 Harv L Rev 630 at 636 (1958). The principles of his inner morality of law are meant individually and in
combination to push law in that direction. See Fullers A Reply to Critics in L. L. Fuller (ed.), The Morality of
Law (rev. edn, 1969) esp. 210. I defend Fullers position in Fullers Novelty in W. J. Witteveen and W. van der
Burg (eds), Rediscovering Fuller: Essays on Implicit Law and Institutional Design (1999) 78.
46
My position would not require, as, for example, Jeremy Waldrons does, that one should avoid entrenching
constitutional rights; see J. Waldron, Law and Disagreement, above n 37, chs 1013. Rather, it requires that rights
when entrenched are still subject to legislative determination; see D. Dyzenhaus, Conscience and the Law: Liberal
and Democratic Approaches in I. Shapiro and R. Adams (eds), Nomos XL: Integrity and Conscience (1998) 187,
esp. 2089.