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This chapter discusses Kelsen's claim that the Pure Theory of Law is a purely descriptive science of law. This Kelsenian self-understanding turns out to be questionable. Key elements of Kelsen's legal science — such as the distinction between subjective and objective legal meaning, the theory of legal order as legal hierarchy, the conception of the basic norm, Kelsen's rejection of anarchism, and his way of drawing the distinction between law and morality — appear unmotivated unless they are understood as elements of an implicit normative political-theoretical project. That project is identified as the aim to develop a legality-based conception of political legitimacy for a pluralistic society and to realize that conception in a utopia of legality.

This chapter offers a new argument against the legal positivist view that non-normative social facts can themselves determine the content of the law. It is argued that the nature of the determination relation in law is rational determination: the contribution of law-determining practices to the content of the law must be based on reasons. That is why it must be possible in principle to explain what makes the law have the content that it does. It follows that non-normative facts about statutes, judicial decisions, and other practices cannot themselves determine the content of the law. A full account must appeal to considerations independent of the practices that determine the relevance of the practices to the content of the law. Normative facts are the best candidates.

This chapter recapitulates some of the principal ideas developed in the preceding six chapters, with particular emphasis on the fact that legal positivists deny the existence of any significant necessary connections between law and morality but do not deny the existence of numerous contingent connections between those two phenomena. It also lays the groundwork for Chapter 9 by emphasizing that the moral status of a legal system hinges crucially on its moral superiority or inferiority to other legal systems that are reasonably attainable.

If a normative order contains not only norms which command a certain behaviour, but also norms which decree sanctions for the nonobservance of norms (as in a positive legal order) and even sanctions for the observance of norms (as in a positive moral order), then the norm which commands a certain behaviour and the norm which decrees a sanction for the non-observance or observance of the first norm form a unity. But this unity may not be expressed in the actual formulation of the norms. If it is assumed to be essential for law that a distinction be made between a norm commanding a certain behaviour and a norm prescribing a sanction for the violation of the first norm, then the former norm must be called the primary norm, and the latter the secondary norm — and not the other way around.

The various formal requirements of an essentially procedural version of the rule of law derive their point and fundamental value from the broader ideal of constitutionalism to which, ideally, they belong. Lon Fuller's ‘inner morality’ of law — the model of law as a body of general, clear, stable, and prospective rules, capable of obedience, and faithfully applied by judges and other public officials — formed the core of a more elaborate conception of law as a bulwark or barrier against the exercise of arbitrary state power. This chapter further examines Fuller's concept and its connections with an associated view of the nature of legal obligation. It is that account of legal obligation — implicit in Fuller's work — that ultimately forges the link between law and justice that was central to his thought. A liberal interpretation of the ‘internal morality’ of law is presented, and the legal and moral aspects of obligation to obey the law are discussed along with a moral and constitutional conception of law. The intrinsic moral value of fair procedures is also considered.

When the idea of the rule of law is interpreted as a principle of constitutionalism, it assumes a division of governmental powers or functions that inhibits the exercise of arbitrary state power. It envisages a fundamental separation of powers between legislator or lawmaker, on the one hand, and those who ‘execute’ or administer the laws, on the other. The rule of law also assumes the generality of law: the individual's protection from arbitrary power consists in the fact that his personal dealings with the state are regulated by general rules, binding on private citizen and public official alike. This chapter discusses the rule of law and equal justice, legislative authorisation of executive power with emphasis on common law rights and public purposes, and procedural legality citing Lon Fuller's ‘internal morality’ of law.

This chapter discusses Lon L. Fuller's book The Morality of Law. This imaginative, original, and thought-provoking book is richly stocked with a variety of themes, many of which deserve a much fuller treatment than this chapter accords to them. Its central theme is the unique virtue of conceiving of law and even of defining ‘law’ as ‘the [purposive] enterprise of subjecting human conduct to the governance of rules’. The morality of duty and the morality of aspiration, and the inner and external moralities of law are described. In this book, Fuller considers the appropriateness to different types of issue of different decision-procedures, among them adjudication and majority vote.

This chapter argues that the most influential version of legal positivism — that associated with H. L. A. Hart — fails. The argument's engine is a requirement that a constitutive account of legal facts must meet. According to this rational-relation requirement, it is not enough for a constitutive account of legal facts to specify non-legal facts that modally determine the legal facts. The constitutive determinants of legal facts must provide reasons for the obtaining of the legal facts. The chapter shows that the Hartian account is unable to meet this requirement. That officials accept a rule of recognition does not by itself constitute a reason why the standards specified in that rule are part of the law of the community. It is argued that it is false that understanding the explanatory significance of officials' acceptance of a rule is part of our reflective understanding of the nature of law.

This chapter contains three sections. In the first, I clarify the basic question to be addressed. I describe a number of key methodological assumptions I take for granted, even though I am aware they are controversial. In the second, I explain the relationships between law and morality, and introduce and defend a defeasible presumption that the content of the criminal law should conform to that of critical morality. Finally, I describe a number of reasons that we should be especially skeptical of intuitions that indicate that defendants who are ignorant of law should not be excused.

Legal Teleology seeks to embrace and to ground the most plausible tenets of both legal positivism and natural law theory. It is compatible with the positivist view that law consists at root in a social practice of a certain kind. Yet it also can accommodate at least some claims about the relation between law and morality that are advocated by opponents of positivism. Most important, it argues that law is “robustly normative”—roughly, law is a source of genuine reasons. Standard forms of positivism cannot account for this thesis, but, arguably, the central doctrines of positivism are compatible with it. Legal Teleology is an account of the normativity of law that is supported by “pluralist-teleology,” a naturalist account of normativity that has been proposed elsewhere (Copp 2009). Legal Teleology sees the law as having a purpose, and it says that law is defective insofar as it does not further that purpose. It agrees that jurists can sometimes help law better to serve its purpose when they invoke moral principles in interpreting law. Legal Teleology represents a kind of intermarriage between legal positivism and natural law theory.

This chapter reflects upon the character of legal control. Prosecution is a symbolic act, expressing conceptions of moral order, which carries meanings beyond any instrumental purpose to be served in reducing rule breaking. Prosecution decision-making is also heavily imprinted with its organizational provenance, and must be seen as an exercise in interpretation and translation in an organizational setting. The fact that regulatory bureaucracies are bodies operating on the public stage when they prosecute helps shape perceptions of the nature of regulatory violations and violators. Prosecution is also transformative: private troubles become public affairs, with private ordering by negotiation yielding to public law enforcement and adjudication. The pervasiveness of discretion is discussed, followed by an exploration of reflective and axiomatic decision-making. An analysis of the extent to which law can cope with risk, the pragmatism of law, and law as a moral enterprise concludes the book.

Legal positivism generally views law as a genre of artifact. Hart’s de-emphasis on function is seen as a response to Fuller and Dworkin’s mistakes. The inclusive/exclusive debate is understood as being over the role of law’s function. Little practical difference between the two positions is seen except perhaps in treatment of individuals who deny the validity of certain laws generally in force, although the focus on law’s artifactual nature leans toward the exclusive position. Legal validity is seen as an aspect of law’s institutionality. A spectrum of the six jurisprudential positions is given based on their views about legal validity’s dependence on morality. Comparison is made between seeing the law as a genre of institutionalized artifact and as a species of social planning. It is argued that Searlean institutionality better explains the endurance of law than Scott Shapiro’s notion of plans, and that Shapiro’s notion of self-certification is ad hoc.

In Justice for Hedgehogs, Dworkin defends a one-system understanding of law. According to this view, law is morality…more exactly, law is a branch of political morality. I have a special interest in the claim, because Dworkin argues that one of its principal consequences is that it undermines arguments I have made about the valid legal status of precepts that are not properly enforceable by courts. In this chapter, I look critically at both Dworkin’s defense of the one system view and his claim that one can embrace the idea of judicially underenforced legal norms only by rejecting any moralized view of law and embracing positivism.

The main thesis of this chapter is that law necessarily raises a claim to correctness and that this necessary connection between law and correctness implies a conceptually necessary connection between law and morality that goes beyond the scope of a positivistic concept of law. Many objections have been raised to the claim to correctness thesis. Of special significance is the argument that it is, indeed, possible to raise the claim to correctness, but that it is not necessary. The reply presented here is that the claim to correctness is necessary relative to a practice that is essentially defined by the distinction of true or correct and false or wrong. This practice, however, is of a special kind. Indeed, one can try to dismiss the categories of truth, correctness, and objectivity. But if we should succeed in doing so, our speaking and acting would be essentially different from what they are now.

This chapter first examines critically Bentham's account of what a command is and the curious theory of assertion, indeed of meaning, on which his analysis in part rests. It then shows that though Bentham's account of what a command is is in various ways defective, he does touch on certain elements embedded in the notion of command out of which the idea of an authoritative legal reason may be illuminatingly constructed. Thirdly and lastly it raises the question whether it is possible to bring the notion of an authoritative legal reason into the analysis of the relevant legal phenomenon without surrendering the conceptual separation of law and morality.

This chapter mentions German philosopher Immanuel Kant who wrote a treatise entitled Religion Within the Limits of Reason Alone where he defended the thesis of the autonomy of philosophical ethics and the inherent rationality of the laws of morality. On the basis of this principle, Kant concluded that if religion is to be admitted as a legitimate mode of thought and practice it would have to be measured by reason. It explains Kant's further conclusions that among the three historical faiths: Christianity, Judaism, and Islam, only Christianity in its Protestant form came close to satisfying the rational and moral conditions that reason and morality prescribe. The chapter also talks about the Jewish neo-Kantian philosopher Hermann Cohen who accepted for the most part Kant's general conception of a religion of reason but rejected his judgement concerning Judaism. In Cohen's last important work, The Religion of Reason out of the Sources of Judaism, he attempted to show the essential rationality of Judaism and its foundation in the moral law.