Beyond Inclusive Legal Positivism*JULESL. COLEMANraju_430 359..394Abstract. In this essay, I characterize the original intervention that became InclusiveLegal Positivism, defendit against a range of powerful objections, explainitscontributiontojurisprudence, anddisplayitslimitationsanditsmodestjurispru-dentialsignicance. IalsoshowhowinitsoriginalformulationsILP dependsonthree notions that are either mistaken or inessential to law: the separability thesis,theruleofrecognition,andtheideaofcriteriaoflegality.Therstisfalseandisin event inessential to legal positivism. The second is inessential to legal positivism.The third is likely inessential to law. I then characterize the central claim of ILP inawaythat reliesonnoneof these: ILPistheclaimthat necessarilysocial factsdeterminethedeterminantsoflegalcontent. IshowthatILPsoconceivedleavesthe central debates in law largely untouched. I suggest how the most fundamentalof thesethe question of the normativity of lawat least can be usefullyaddressed. The essay closes by suggesting that even though one can distinguish thesocial fromthenormativedimensions of law, atheoryof thenatureof lawisnecessarily an account of the relationship between the two: It is a theory either ofthe difference that certain distinctive social facts make in normative space, or it isanaccountofthedistinctivenormativedifferencethatlawmakes, andthesocialandotherfactsthatarenecessarytoexplainthatdifference. Onecandistinguishbetween but one cannot separate the social from the normative aspects of legality.1. IntroductionIt is natural tocharacterizecontemporaryanalyticjurisprudenceas asequence of distinct but overlapping dialogues between competing camps:1* I cannot begin to express my gratitude to the organizers of the conference on my InclusiveLegal Positivism and to the many legal philosophers who attended. I am deeply honored bythe attentionall have givenmy work andamprivilegedto have hadsuchwonderfulinterlocutors over the years. Some started as my students; a few as my teachers; and othersas my critics. All are my friends and colleagues; and I am indebted to them all. John Rawlsonce conded in me that he did not think that he had much original to say but that he wasuntroubledbythat fact sincehefelt that originalityinphilosophywasmuchoverrated. Iclaim no originality for my work. If standing on the shoulders of giants was good enough forRawlsitsureasheckisgoodenoughforme.Inmycase,Iwobbleontheshouldersofthegiants of our eld: Herbert Hart, Joseph Raz, and Ronald Dworkin. I especially want to thankLesliePopeforherexcellentresearchassistance.1Somemightcallthemdisputesordebates. Allsuchtermsareaptindifferentways.RatioJuris. Vol. 22No. 3September2009(35994) 2009 The Author. Journal compilation 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and350 Main Street, Malden 02148, USA.Positivistsareindialoguewithnatural lawyers, realistswithformalists,positivistswithDworkinian/interpretivists, andinclusivewithexclusivepositivists, andsoon. Thesedialogues haveoftenservedtoshapethewayinwhichcentral concernsinjurisprudencesuchastherelationshipbetweenlawandmorality, thenatureofadjudication, andconstraintsonthecriteriaoflegalityareformulatedandaddressed.Inmost cases, a dialogue begins narrowlyfocusedona reasonablywell-dened point (or two) of contention. In time, the discussion maturesanddeepens, newissuesemerge, connectionswithpreviousdisputesarerevealed, and interest in well-trodden, even seemingly moribund concernsarerekindledas theyarerecast inadifferent light andseeninanewcontext. Almost seamlessly, afamiliardialoguemorphsintoanewone.New players are introduced, fresh ideas emerge, and on occasion even themost fundamental projectsof jurisprudenceandthemethodsof inquiryintothemarereassessed; inthiswaytheelditselfisreinvigorated.It wouldnot be unfair to characterize the original dispute betweenpositivists and Dworkin as a powerful but nevertheless narrowly focusedintervention in the on-going dispute between positivists and naturallawyers about therelationshipbetweenlawandmorality.2Inrelativelyshort orderwhat wasonceaninterventioninonedebateturnedintoabroaderdisputeaboutthemethodologyofjurisprudence, thatiswhetheran inquiry into the nature of law is a project in political philosophy, socialscience, conceptual analysis, or something else altogether.3At roughly thesametimetheDworkin/positivist debateshiftedfocusfromreconceptu-alizingtherelationshipbetweenlawandmoralitytoexploringthemostpersuasive way of accommodating the nature and scope of legal disagree-ment. This new focus prompted an inquiry into whether legal positivismsalleged commitment to the conventionality of lawcould explain thepossibilityofdisagreementaboutthecontentoftheconvention, inotherwords, whether positivism could explain disagreement about the criteria oflegality or the grounds of law.4What was once a dispute about constraintsonthecriteriaoflegalitybecameadebateaboutthepossibilityoflawinthefaceofdisagreementaboutwhatthosecriteriaare.Today the debate has shifted once again. The urgent question is whetherthe notion of legality presupposes the existence of criteria of legality at all2Characterized in this way, it is natural to align Dworkin with the natural law tradition, andmanycommentatorshaveneverseenhiminanyotherway. Inmyviewsuchacharacter-izationistoocrude.3The person most responsible in my view for the methodological turn in jurisprudence andwhose work focused attention most clearly on these issues is Stephen Perry, whose forays intothiseldhavenotreceivedalltheattentiontheydeserve. SeeespeciallyPerry2001, 311.4See, e.g., Coleman2001b; 2001a; Shapiro2007; see alsoDworkin1986(discussingthesemantic sting). Dworkin also discusses these issues in his review of The Practice of Principle,whichdisplays, Ifear, hiscapacityforsustainedinsultoverhismoreadmirableabilityforsustainedargumentation(Dworkin2002).360 Jules L. Coleman2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3and whether the projects of jurisprudence must focus on determining whatthose criteria are. In a way the question is whether the distinction betweenthe legal and the non-legal is a matter of criteria at all. As a general matterpositivistsbelieveitisandDworkiniansdonot.Hart and those inuenced by himconsider part of the project ofjurisprudence to be determining the criteria that set law apart from othermodes of regulatinghumanaffairs, for example, moral rules, informalnorms, sanctioningandpricingsystems. InHartsjurisprudence, theruleof recognition plays the role of distinguishing the legal from the non-legal.5More generally, Hartian positivists, but not just Hartian positivists and notjust positivistseither, approachjurisprudencefromthepoint of viewofcriteria: criteriafordistinguishinglegal fromothernorms, legal systemsfromoneanother, andsoon. Theproject begins withidentifyingwhatactivities and which institutions count as legal and therefore whose actionscan contribute to law. Then the question becomes which of these activitiescontributetolawandhowtheycometogethertomakelaw. Lawistheoutcomeoftheprocess; andthefocusofjurisprudenceinthemainistoidentifythecontributorsandtheircontributionstoit.Dworkins earliest interventions respondedtosimilar concerns. Eventhough in The Model of Rules (MOR) he objects to the positivists claim thatonly rules can constitute the stuff of law as well as the related claim thataruleofrecognitionorsomethingverymuchlikeit(aMasterRule)isnecessarytodistinguishrulesthatarelegalfromthosewhicharenot, hedoes not resist thebasic presuppositionthat thejurisprudential projectconsists in identifying which norms can count as law and which activitiesas legal (Dworkin 1978, 1446). He does not reject the project the positivistsareengagedin,onlytheirexecutionofit.Hisviewisthatprinciplesandpolicies can also be binding sources of law; and their status as law does notdependontheexistenceofaMasterRulethatmarkstheborderbetweenwhatislawandwhatisnot.Dworkinenteredthe debate withmanyof its terms alreadysettled.When MOR was written, to theorize about the nature of law was to focuson criteria of legality. Because that was the accepted framework, it cannotcome as a surprise that Dworkin raised his objections to positivism withinthatframework. Indoingso, heappearedtoacceptthestandardwayofthinkingabouttheprojectsofjurisprudence.For all of itsimportance, thepublicationof MORisnot awatershedmoment injurisprudencebecauseit is writtenwithinaframeworkforapproaching jurisprudence that Dworkin later rejected. And it is therejectionof that frameworkthat mayconstituteDworkinsmost lastingcontributiontojurisprudence.5In playing this role, the rule of recognition also distinguishes one legal system from another.361 Beyond Inclusive Legal Positivism2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3I have come to believe that Dworkins main point has always been thatlaw is not best understood in terms of criteria at all. In the rst place eventhoughhe criticizedpositivisms particular mode of distinguishingthelegal fromthenon-legal (whichheidentiedperhapstoonarrowlywithHarts rule of recognition) he never himself offered alternative criteria. Thismay have been because he had no well developed view of what the criteriaof law are; more likely, it is because he never believed that distinguishinglawfromnon-laworlegal systemsfromoneanotherrequirescriteriafordistinguishingthat whichbelongstothelegal domainfromthat whichdoesnot.The rst real hint that Dworkin did not accept the conventional frame-work comes as early as the essay, Hard Cases (Dworkin 1975) in which lawisidentiedwiththesetofcoercivelyenforceablepoliticalrightsandnotwith the actions or institutions that give rise to them. The same resistanceto the conventional framework is displayed in Laws Empire (Dworkin 1986)where Dworkin (abandoning the view of Hard Cases that law is a subset ofpolitical rights) identies lawwiththat set of political principles thatprovidesthebest interpretationof arelevant set of past political acts(of aparticular jurisdiction). Theshift fromlaw-as-enforceable-politicalrights to law-as-political principles is unexplained, but the difference isless important than what remains unchanged. In neither work is the focusofjurisprudenceonidentifyingmembershipconditions.6Tofaulthimforhis failure to adopt this focus would be to impose a positivistic conceptionof jurisprudence on him; and that, if I have interpreted Dworkin correctly,ispreciselywhathemeanstoresist.Scott Shapirocapturesthisdistinctionbetweenpositivists(andothers)and Dworkinians in terms of an emphasis on inputs and outputs.7Asheputs it: Whilelegal positivistsindeedmost theoristsseejurispru-dence as aninquiryintothe inputs of law, that is, as identifyingandtheorizingabout whichinstitutions, acts, andactivities aredistinctivelylegal and why, Dworkinians see jurisprudence as focused on characterizinglaw as a normatively signicant output, the inputs of which are determinedinsomeotherway(e.g., bysocialscience), ifatall.I thinkShapiroiscorrect. Most legal theoristspositivistsincludedadopt this conventional framework. In that framework, the lawof a6InHardCasesDworkindoesnot treat theburdenof jurisprudencetobeidentifyingthecriteriafordistinguishingwhichnormsgiverisetolegal rightsandinLawsEmpireheabjures the requirement of specifying criteria for distinguishing those past political acts whoseinterpretation is required to determine the law from those that do not call for interpretation.SeeDworkin1986; 1975.7Shapiroexpressedthedifferencethis wayinconversationandit has stimulatedmetoreconceptualizehowoneshoulddistinguishthepositivist approachtojurisprudencefromthe Dworkinian. I think Shapiro is basically correct, but I think that another way of puttingthedifferenceis interms of thecentralityof criteriatojurisprudence. Thetwoways ofdistinguishing Dworkinians from positivists come together in some of the remarks that follow.362 Jules L. Coleman2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3communityis built upfromsome materials andnot fromothers. Theproject of jurisprudence in the rst instance is to identify what stuff countsandwhy; andinthesecondinstancetoexplainthedistinctivewaysinwhichlawisconstructedfromorconstitutedbytherelevantmaterialsrules, judicial decisions, and so on. The other important question ofjurisprudence is to determine what difference law, so conceived, makes oris capable of making in normative space. Thus, there is a naturaldichotomy between the institutional/social andnormative concerns ofjurisprudence. We will return to this issue later, but for our currentpurposes, theimportantpointisthatformostadoptingtheconventionalframework, the project cannot get underway without criteria for member-ship, that is, criteria that acts must satisfy in order to count as contributorstolegalcontent.ItmaywellbetruethatatthebeginningDworkindidnotcontestthisframework and the approach to jurisprudence it embodies and was insteadcontent to raise signicant doubts about the capacity of legal positivism toexecute the project ina waythat wouldprove illuminatingabout thenature of law and its place in our lives. Still, there is little question that atbottom Dworkin rejects this entire picture and that his greatest legacy willhave been that he provided us with another avenue or approach toconsider. Roughly, in that approach we take law as something that makesanormativedifferenceandthersttaskistocharacterizethatdifference.IntheworkofMarkGreenberg, lawisunderstoodaschangingwhathereferstoasthemoral prole(Greenberg2007). Insomeof Dworkinswritings,thelawcreatesasetofrightsthatarecoercivelyenforceable.Inother parts of his work, law answers the question as to when the collectiveuseofforceisjustied.Once the normative difference that lawmakes is characterized, thetheorist works backwards to identify the grounds of the difference, that is,what acts by what processes contribute to the distinct normative differencethe law makes. The sociality and institutionality of law is characterized asthat which is required in order to explain the normative difference that lawmakes.8In order to pursue that project, we do not have to presuppose theexistenceofcriteriaoflegalityorcriteriaforthedomainofthelegal.Arguably, adialoguethat beganlifeoverthirtyyearsagoasaninter-ventioninthelong-standingdisputeabouttherelationshipbetweenlaw8InconversationswithNicosStavropouloswefoundourselvesagreeingonthefollowingwayofdistinguishingpositivistsfromDworkin. Positivistswant toidentifythesocial andinstitutional stuffoflawandgetthatright. Thentheytrytogureouthowthatstuffcanaccountforthedifferencelawmakes. Dworkinhasaviewaboutthedifferencelawmakes,andtheinstitutionalityandsocialityof lawthat isapt forlawisthat whichisneededtoexplainthedifferencethat lawmakes. I thinkthat isright. I thinkthisisanotherwayofputting Shapiros point about inputs and outputs. I also think, as I argue in the paper, the keyisthedifferencebetweenpositivistsandDworkiniansonthecentralityofcriteria.363 Beyond Inclusive Legal Positivism2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3andmoralityisnowadisputeabout howtounderstandtheproject ofjurisprudenceitself. Thedialoguebetweenlegal positivistsandDworkinhasenduredforaslongasithasbecauseeachformulationofthedebatestimulatedfurtherreectionsandeachreectioninvitedfurtherreformu-lationsofthecentralissuesofjurisprudence.9AndsoIcometothebodyofthispaperinwhichIwillreectonthecontributionofInclusiveLegalPositivism(hereafter, ILP).10Tobehonest,evencapitalizingthe name of the viewwithwhichI have beenmostclosely associated in jurisprudence11suggests a kind of signicance of thethesis that I am unwilling to claim for it. I do not mean to trivialize ILP asan intervention or as a contribution to jurisprudence either. In what followsI hope to do justice to both of these sentiments by explaining the view asI understand it, exploring its contributions to jurisprudence and identifyingsome of its limitations. I then turn my attention to identifying some of thelarger issues injurisprudencethat areleft untouchedbythedialoguesbetweenILPandExclusiveLegal Positivism(hereafterELP) ontheonehand and that between ILP and Dworkinian interpretivists on the otherperhaps the most signicant of which I have already touched upon above.Theremarksthatfollowfallintotwogeneralcategories: onefocusingonILPandtheotherfocusingonthecentral issuesof jurisprudenceorat9Manyof thedialoguesinjurisprudenceinwhichwetodayparticipatereachedmaturitylong before we arrived on the scene. Being able to participate in debates of such duration andimportanceboththeoretical andpracticalis anhonor, a privilege, anda burden. Ourgreatest responsibilityis tokeepthe dialogues alive, vibrant, andmeaningful bygivingexpression to the centrality of law, its awesome powers, its capacity for evil as well as good,for oppression as well as liberation. The burden is to make our discussions ever more precise,clear, anddeepwhileavoidingtheriskof renderingthemaridandunconnectedtotheexperiences of all usall around the worldof living under law, and the experiences as wellof those who live without the protection of law. The second burden is more personal to eachofusandthatistodetermineinwhatwayseachofuscanmakeacontribution, howeversmall, to debates and dialogues so mature that the great contributors to them dwarf us. If wehave made a small contribution, helped to focus attention on an abiding concern ofjurisprudence, moved the discussion along, or broadened or deepened it, then we should beboth proud and grateful. We should be proud of our role and grateful for the opportunity thiseld and this community of scholars in it has provided us. Nothing makes me prouder thantohavebeenafaithfulintellectualservanttotheeldofjurisprudenceandambassadorforit.ItisnotformetojudgewhetherIhavecontributedanythingofsubstanceenduringoreetingto the eld beyond doing my best to keep it alive and meaningful and to instill inmy students a love and respect for it. That is both the least I could have done and the mostI could have hoped to accomplish. The key is to see oneself and ones interventions as partof a dialogue with others, the aim of which is to call attention to various concerns about lawand its role in our social, political, moral, and economic lives together. The ultimate purposeofthesedialoguesistodeepenourunderstandingofourselvesandourplaceinthesocialworld.10InclusiveLegal Positivismis, I believe, WilfridWaluchowsnamefor thisposition, notmine. See, e.g., Waluchow1994. The position is also sometimes characterized as SoftPositivism.I muchprefer beingreferredtoasinclusivetobeingreferredtoassoft,though there is no denying that some consider those of us who are inclusive to be soft as insoftheaded,notsofthearted.11IngeneralIamprobablymorecloselyassociatedwithcorrectivejusticeintortlaw.364 Jules L. Coleman2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3leastonsomeofthemthatareleftuntouchedbythedistinctivecontri-bution that ILP has made. All of the arguments that follow are necessarilycompressed and somewhat sketchy as I could not hope to do full justice toeither project, let alone toboth, inthe context of these brief remarks.WhereverpossibleI havetriedtomaintainaconversational toneinthewriting in order to reect the occasion. I have sought to maintain the senseofapubliclectureinwhichIhavebeenaskedtoreectonthecontribu-tions ILP has made to jurisprudence and in doing so respond to those whohave been asked the same question, some of whom are inclined to the viewthat ILP represents a great achievement in jurisprudence, others of whomareconvincedit isof nosignicanceat all, andothersstill whoseownaccountingreckonsbothitsvirtuesandlimitations. Withoutgivingawaytoo much of what is to follow, I fall squarely in the latter group, though Imay be more skeptical of ILPs overall importance than are others. I wouldlike to believe my skepticism is owed to modesty, but I am inclined to thinkitisanunavoidableconsequenceofscholarlyintegrity. Ifsothatisgoodenoughformeinfact, itisbetter.122. Inclusive Legal Positivism: The What and Why of ItILP began life as an intervention in the Hart-Dworkin debate, in particularas a response to Dworkins objections in The Model of Rules (Dworkin 1978)(hereafter, MOR). InMORDworkincharacterizesHartspositivism(andpositivism more generally) in terms of four basic tenetsall of which willbefamiliartomostreadersofthisjournal:1) Legalnormsarerules.2) Legalrulesaredistinguishedfromotherrulesbytheirbeingpickedout assuchbyaruleof recognition(ROR), whichDworkincallsaMasterRule.12I amhonoredbytheparticipationof somanydistinguishedlegal philosophers intheconference on my contributions to jurisprudence, many of whom I know well and others ofwhom I had not met before and all of whom I greatly admire. I am especially grateful to theorganizers of the conference and to the journal, Ratio Juris, for publishing the proceedings. Ihadgivenalotofthoughttotheformmyresponsetotheessaysshouldtake. Itbecamecleartomeearlyonthat thiswasnot theoccasiontorespondindividuallytoeachpiece,especially given how diverse the contributions are. I could not have done justice to each andevery essay in the context of a coherent and readable essay, let alone one that sought to makea contribution of its own. In the end, I decided that the best way to honor the contributionsof others is to do what I could do to keep the dialogues in which we all participate alive andwell. Accordingly, inthisessay, IhavechosentoreectonwhatItakethecontributionsofILP to be and to see if I can take some preliminary steps in moving the debates surroundingILP forward. In future essays and in my next book I hope to have occasion to respond moredirectlytotheparticular pointsthat variousof thecontributorshavemadebothfor andagainst my views. For now, I thought the best way to keep the wonderful collective spirit ofthe conference alive was to try my hand at what we all hope in our work to accomplish, thatis, makingsomecontributionstotheeldwehopeourworkhonors.365 Beyond Inclusive Legal Positivism2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 33) Thereisnonecessaryconnectionbetweenlawandmorality. I andothershavecometocallthistheSeparabilityThesis(ST).4) Thediscretionthesis(DT).BeginningwithdoubtsaboutDT, theargumentofMORseekstounder-mine all four of these tenets. DT relies on the idea that in hard casesthosein which law runs out or in which there are gaps in the lawjudges mustappealtonon-legal, thatis, optionalordiscretionary, standards.Manyofthestandardsjudgesapplyinhardcasesaremoralprinciples(or social policies). Dworkin notes that judges do not treat such standardsas optional for themandhetakes therebenoreasonwhyweshoulddiscredit this phenomenological evidence. The plausible inference to drawtherefore is that at least inhardcases moral principles canbe legallybinding on officials. If they are legally binding then they are part of the lawof therelevant jurisdiction. If thisargument issound, several problemsemergeforHartspositivism.Principlesarenotrules. Ifprinciplesareorcanbebindinglaw, thenitcannot be true that all laws are rules. In that case, (1), the model of rulesfails. If such norms are law, their status as such depends on their content,thatis,onthefactthattheyexpressademandordimensionofjusticeorfairness. Their legality does not depend on their being identied as such byaruleofrecognition. Thismeansthat(2), theruleofrecognition, failsaswell. Moreover, ifmoral principlesareorcanbelegal norms, thentherecannot be the kind of separation of law and morality that the separabilitythesis envisions. Inthat case, (3), theseparabilitythesis, fails. If moralprinciples can be binding on judges and not optional for them, thissuggests that where positivists see discretion, the better view is that thereis binding law. Thus, (4), the discretion thesis cannot be sustained. In short,if we accept the phenomenological evidence as decisive, then all four tenetsof legal positivismmust be abandoned. This leaves legal positivismwithout, sotospeak, alegtostandon.Legal positivists have pursued three lines of response to these objections.The rst andleast interestingresists the pull of the phenomenologicalevidence. The idea is that, given the nature of her role, a judge is unlikelytotreatthegroundsofherdecisionasoptionalratherthanasbinding.Itfollows that the fact that judges write as if the norms to which they appealarebindingandnot optional doesnot helpusdecidewhethertheyare.That will dependonthe best theory of what lawis andnot onthesupercialevidenceprovidedbyjudicialopinions.The other two lines of response ultimately separate legal positivism intowhat we now think of as ILP and ELP. Common to both is the insightfuland altogether persuasive distinction drawn by Joseph Raz between stan-dards that are binding on judges and those that are binding in virtue of theirbeingpartofthelawofthejudgesjurisdiction(Raz1970,296).Forexample,366 Jules L. Coleman2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3in a conict of law case, the law of a foreign jurisdiction, F, may apply andbe binding on a judge in jurisdiction, H, but that does not render the lawof F part of the law of H. In saying that F is an independent legal system,part of what we have in mind is that it falls to those legal agentsauthorized to act in F to make and change its law and that no one in H hasthe authority to do so. Raz is right that one cannot infer that moralprinciples are law from the fact that they are binding on legal officials. Onthe other hand, one cannot conclude that moral norms are not legal normseither. Razsdistinctiondoesnot settlethematterofwhethersuchprin-ciplesarepart of thelaw, andit isinrespondingtothisquestionthatpositivistshavesplitwithoneanother.Many commentators identify the beginning of ILP with my essay,NegativeandPositivePositivism. Thegistoftheargumentinthatessayisthat one can accept all of Dworkins presuppositions about the legality ofmoral principles and yet resist his conclusion that legal positivism must beabandoned(Coleman1982, 139). Before Negative andPositive Positivism,somelegal positivistslikeDavidLyonsandRolf SartoriusrespondedtoDworkins objections by noting that positivism has no problem with moralprinciples countingas lawprovidedtheir status as lawdepends oncertaininstitutional facts about them and not on their content: That is, not on the factthattheyexpressrequirementsofmorality.13This line of response is not persuasive, nor is it adequate to meetDworkinschallenge, whichisdesignedtoshowthat somemoral prin-ciplesarelawinvirtueoftheircontentormoralmerits. Itookmyselftobe addressing more directly and persuasively Dworkins more worrisomeobjection in Negative and Positive Positivism. Using Harts notion of a rule ofrecognition, we might simplysaythat moral principles canbe legallybinding in a jurisdiction if there is a clause in the rule of recognition to thateffect. Such a clause might make institutional features or substantivefeatures of moral principles decisive. What matters is not the nature of thenormwhoselegalityisinquestion, beit moral orotherwise, norwhichproperties of the normsinstitutional, social or substantivegure indeterminingitslegality, butthecontentoftheruleofrecognition.Arule of recognitionexists whenthe relevant officials applycertainstandardsforassessingthelegalityofconductandadoptacriticalreec-tive attitudewhat Hart referredtoas the internal point of viewtowardstheirdoingso. If therelevant officialstreat aclausespecifyingcertain conditions of substantive morality as conditions of legality as part13Positivismhasnoproblemwithmoral principlesbeinglawif theyarelawinvirtueofsomething other than their moral content. Presumably, the thought is that it would violatethe ST if the legality of a norm depended on its merits because this understanding of legalitywouldthreatentoerasethedistinctionbetweenwhatthelawisandwhatitoughttobe, adistinction that is, some have thought, the very heart of legal positivism. Lyons 1977, 415, 426(reviewingTakingRightsSeriously); Sartorius1971, 1534.367 Beyond Inclusive Legal Positivism2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3of the norm they apply in assessing conduct, then it is plausible that sucha clause is part of the relevant rule of recognition. If so, thenmoralprinciples arelawof therelevant jurisdiction; andtheir status as suchdepends on their content only insofar as the rule of recognition makes thecontentofsuchnormsaconditionoftheirlegality.143. Inclusive Legal Positivism: The Jurisprudential Value of ItI believed then and continue to believe that the basic argument of NegativeandPositivePositivismisdecisiveagainstDworkinsobjectionstoHartinMOR. Ontheotherhand, I donot thinkthat theultimatevalueof myinterventionhasmuchtodowiththeroleitplayedinfendingoffwhatsome took to be devastating objections to legal positivism. Quite thecontrary. I view that contribution as being of real, but not of lasting, value.To my mind the primary value of ILP is the role it played in creating andsustaining a series of discussions that helpedto focus attention onseveral issues of more fundamental importance than the concerns ILP wasitselfdesignedtoaddress. Theseincludeespecially:1) Therelationshipbetweenauthorityandlaw.2) Therelationshipbetweencoercionandlegality.3) Thenatureandscopeofmeaningfuldisagreementinlaw, especiallydisagreementaboutthecriteriaoflegality.4) Whetherthedomainoflegalitypresupposescriteriafordistinguish-ingthelegalfromthenon-legal?5) ThemethodologyappropriatetoJurisprudence.6) The difference between determining what the constituent elements oflaware andwhat judgments we canmake about lawandwhatimpactlawmakesinnormativespace.Someoftheseconcernsarefamiliarandthereisnoneedtoelaborateonthem. The way I have expressed others requires considerably more elabo-rationandthecontributionILPmakestothemislessimmediatelyclear.I donot suggest that theseissueswouldnot haveemergedbut fortheintroduction of ILP; that would be far too strong a claim to make. My viewis therather different onethat theintroductionof ILPandsubsequentdiscussions of its merits havebeenpart of theprocess of drawingtheattention of jurisprudence scholars to these (more pressing and fundamen-tal) issues. Tome, it isinthiscapacitythat ILPhasestablisheditsreal14The key to my intervention was not challenging the most contestable premise in Dworkinsargument. Incontrast toother positivist-inspiredresponsestoDworkinsobjections, mineallowedthat the moral content of the principles couldbe part of the grounds of theirconstitutinglaw.368 Jules L. Coleman2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3legacy.Forthatreason,butnotjustforthatreason,Iwanttopresentmysense of howILPhelpedtoshape these current debates andtodrawattentiontothoseissues, whichareleftuntouchedbythetruthorfalsityofthecentralclaimsthatILPmakes.4. Law and AuthorityThere were two different kinds of objections raisedto my claimthatmorality could be a condition of legality. One set of objections argued that,properly understood, legal positivismitself imposes constraints on theconditions of legality and that those conditions preclude the ILP solution.Other objections to my view were designed to show that the nature of laworfeaturesofourconceptofitprecludetheILPsolution.Themostfamiliarobjectionoftherstsortreliesontheclaimthatforpositivism law is a matter of hard facts. I never understood the distinc-tion between a hard and a soft fact (other than epistemically as expressingdegrees of condence one could have in putative facts), but I think we canadd some clarity to the discussion by substituting social facts for hardfacts.Theclaimthenis that legal positivismis committedtothelawconsisting only of (or in) social facts. The contrast is between social andnormativefacts. Theobjectionthenisthat legal positivismrequiresthatlawbeamatterofsocialfacts(andnotnormativefactsoracombinationof social andnormativefacts). SinceILPallowsthat moral factscanbelegalfactsorcriteriaoflegality, itviolatesthehardfactsorsocialfactsrequirement.15There are many reasons not to be persuaded by this objection but the realproblemisthatthereisnothinginlegal positivismthatimpliesthatlegalfacts must be social facts. There is an argument for the claim that legal factsmust be social facts, but it does not proceed from claims about the natureofpositivismbutfromaclaimaboutthecontentoftheconceptoflaw(Raz1996; 1985). This is Razs argument from authority for the Sources Thesis:1) Lawnecessarilyclaimstobealegitimateauthority.2) The claim to being a legitimate authority is not incoherent, but it canbefalse.3) Becauseitisnotincoherentitcannotbenecessarilyfalse.4) Therefore, lawsclaimcouldbetrueevenifitisalwaysfalse.5) Thus law must be the sort of thing that the claim that it is a legitimateauthoritycouldbetrueof.6) Were the content or identity of law to depend on moral facts, its claimtoauthoritywouldbenecessarilyfalse.15I imagine that is why some refer to it as soft positivism and why others resist calling itpositivism at all. I cant say I am moved by these concerns or drawn to these characterizations.369 Beyond Inclusive Legal Positivism2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 37) Therefore, theidentityandcontentoflawcannotdependonmoralfacts.8) Therefore, theidentityandcontent of lawmust dependonsocialfacts.9) Therefore, alllegalfactsmustbesocialfacts.Imaynothaveputtheargumentasotherswouldhave, buteveryoneinjurisprudence is familiar with it in one form or other. This is the argumentfrom authority the conclusion of which is the Sources thesis: The claim thattheidentityandcontentoflawmustbedeterminedbysocialfacts.Oneimportant rolethat theargument fromauthorityplays is that itcompletes Razs response toDworkins initial objections topositivism.Razsresponsehastwoparts:(a) Moral principles can be legally binding without being part of the lawofthejurisdictionsinwhichtheybind.(b) Moral principles can be legally binding but they cannot be part of thelawofthejurisdictionsinwhichtheybind.All positivists accept (a). Indeed, no jurisprudential theory would serve itscause well by denying (a). For Raz, the argument from authority entails theSourcesthesiswhichinturnentails(b). If correct (b) underminescom-pletelytheargument of MOR. (b) denesELP. If correct (b) alsounder-minesILP.Mostcommentatorsinterprettheargumentfromauthorityasauthoriz-ing a characterization of legal positivism that contrasts with ILP. This is amistake. Theargument fromauthorityproceedsfromaclaimabout theconcept of law, and if sound, it establishes a claim about the nature of law,andnotaclaimaboutthenatureoflegalpositivism. Theargumentfromauthorityisdesignedneithertodefendnortodenepositivism, but toreveal something true and important about law. If anything, it entails thatlaw must be as legal positivists (independently) say it is. Its conclusion isnot that ILPis aninadequateversionof legal positivism. If sound, itsconclusionisthatILPisaninadequatetheoryoflaw.Given its importance, it is no surprise that the argument from authorityhasbeenthefocusofagreatdeal ofcritical discussion. Ihavenotbeenpersuaded by the argument from authority, but that can hardly come as acomplete shock since, if sound, it would have put me out of business. Myskepticism has two sources, one pertaining to the arguments validity, theothertoitssoundness.The argument from authority relies on establishing a subsidiary conclu-siontotheeffectthatifonehastoappealtomoralprinciplesorfactsinordertodeterminetheidentityorcontentoflaw, thenonevitiateslawsclaimtoauthority. Ifeveryefforttoidentifyalegal directiverequiresan370 Jules L. Coleman2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3appeal to moral facts or principles, every legal directives claim to being anauthoritative directive is rendered necessarily false. That in turn would beincompatible with the seemingly harmless requirement that even if claimsto authority are invariably false, they cannot be necessarily false. And thatwould be a problem. The argument for the subsidiary conclusion proceedsroughlyasfollows.A person asks herself, What ought I do? The answer depends on whatthe balance of reasons requires. Individuals can often adequately assess thebalanceof reasons. Whentheyarenot suretheycanseektheadviceorguidanceofothers. Theycanalsosubstituteanauthoritysjudgmentfortheir own. It is rational to take that tack only if one has sufficient groundsforbelievingthatonewilldobetterincomplyingwithwhatthebalanceof reasons requires by acting on the authoritative directive than one will doby acting on ones own assessment of what reason demands. It is naturalthen to dene an authority as legitimate (for particular persons over somedomain of activity) if and only if those to whom the authoritative directivesapplywill better complywiththedemands of reasonbyactingonitsdirectives than by acting on their own assessment of the balance of reasons.In the typical case the authority and the agent are confronting the samesetofreasonstryingtodeterminewhatthosereasonsdemand.Thesearecommonlyreferredtoas the dependentreasons. Since these reasonsdetermine what one ought to do, it is natural to think of them as moralreasons. Whenoneaccepts anauthority, onesubstitutes theauthoritysjudgment of what these reasons require for ones own assessment.However, if an agent addressed by an authoritative directive must appealto the set of dependent reasons in order to determine what the directive isorwhatitrequires, hetherebyunderminesitsauthority. Thedirectiveisnottherebycapableofmediatingbetweentheagentandthereasonsthatapply to him. Determining what the directive is and what it requires turnsout torequirehimtoengageintheverybalancingof reasonthat theauthoritativedirectivewastodoinstead. Inorderforthelawsclaimtoauthority to be coherent, the directives and their content must be accessibleto agents by considerations other than the set of dependent, that is, moralreasons. Thatcannotbethecaseifmoralfacts(reasonsorprinciples)areconditions of legality. Thus, thepossibilityof legitimatelegal authorityprecludes the possibility that moral principles are legal norms. Moregenerally, it precludesthepossibilityofmoral factscontributingtolegalcontent.Evenif sound, theargument proves less thanadvertised. At most itshowsthatthepossibilityoflegitimatelegal authorityimpliesthatthosegovernedbyauthoritativedirectives cannot appeal tothose moral prin-ciples onwhichthe authoritative directives rely. It does not precludeappealingtoothermoral principlesorfactsinordertodeterminewhichnormsarepartofajurisdictionslaw. Theargumentfromauthoritydoes371 Beyond Inclusive Legal Positivism2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3not therefore preclude morality from being a condition of legality nor doesitprecludemoralprinciplesfromconstitutinglegalnorms.I have also urged the distinction between the determinants of legalidentityorcontentandthevariousmeansofdetermininglegalidentityorcontent. The argument from authority uses the latter notion in its premisesbut draws conclusions about the former. If sound, the argument fromauthority implies that one cannot appeal to the dependent reasons in orderto identify or determine the law or what it requires. It does not establish thatdependent reasons (moral facts) cannot be among the determinants of legalcontent. TheargumentfromauthoritydoesnotundermineILP.Moreover, it is not clear that the claim to being a legitimate authority isa feature of our concept of law and thus a necessary truth. It is even lessclear that suchaclaimis distinctiveof law; andthereis noreasontosupposethatitisuniquetolaw. Moreimportantly, itisnotobviousthatthe claim to being a legitimate authority could not be necessarily false. Tobesure, theclaimisnotincoherentandthusitisnotnecessarilyfalseinvirtueofitbeingincoherent. Thoughcoherent, theclaimcouldneverthe-less be necessarily false, as it would be, for example, were anarchism true.Thepossibilityofanarchismsbeingtrueimpliesthattheclaimtolegiti-mateauthoritycouldbenecessarilyfalsesincetheconceptofanarchisminvolvestherejectionofthepossibilityoflegitimateauthority.Finally, the argument from authority rests on a particular conception ofauthority, andnot ontheconcept of authorityitself. Razclaimsthat hisservice conception of the function of authorities (Raz 1985, 21) elucidatesour ordinary notion of authority, but I am not so sure. For Raz, authorityis a relationship between reasons and persons. Because Raz views authori-tiesasmediatingbetweenpersonsandthereasonsthatapplytothem, itshould come as no surprise that he regards the legitimacy of authority asdeterminedbytheserviceconception.I worry that the service conception does not capture the ordinary notionof authority, whichtomymindis arelationshipprimarilybetweenoramong persons (and institutions and persons) and not a relationshipbetweenreasonsandpersons. Theclaimtoauthorityis, I believe, tobeunderstood in terms of a relationship of standing. One who has authoritystands in a particular relationship, not to reason, but to other persons. Tohaveauthorityistohavestanding. That standingisconstitutedbydis-tinctive powers, depending in part on the kind of standing it is. In the caseof political authority, it isstandingtoissuedirectivesthat changewhatthoseover whichonehasauthorityhavereasontodo. Thisisall veryrough of course since I am not here offering a full account of the nature andcontent of the powers that partially constitute the notion of politicalauthority. I aminsteadsimplyentertainingtheideathat authorityrela-tionships arebetweenpersons andinvolvethenotionof standingand,accordingly, maynotberelationshipsbetweenpersonsandreasons.372 Jules L. Coleman2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3My aimis not to establish that Raz is wrong about the nature ofauthority. Rather, mypoint is more modest. I meantoshowthat theargument from authority rests on a distinctive conception of authority thatmay well not be our ordinary one. I am inclined, moreover, to read Raz asoffering a revisionist conception of authority. Once we understand that theclaimtoauthorityisgroundedinserviceortheinstrumental efficacyofdirectives, we will abandon (or we should abandon) our ordinary concep-tionofauthorityasinvolvingtheideathatauthorityisarelationshipinwhichonehasastandingoveranother.165. Law and ConventionalityDworkin has pursued a number of different lines of attack against ILP. Intheend, theyall revolvearoundtheconventionalityof law. All takeforgrantedthatweshouldunderstandlegalpositivismintermsofaruleofrecognition, and that positivists are committed to understanding the rule ofrecognitionas aconvention. Withtheseassumptions inhand, Dworkinoffers a number of different objections, but the following three are the mostinterestingandimportant:1) If the rule of recognition is a convention it cannot explain the duty ofofficialstocomplywithit.2) If the rule of recognition is a convention then it cannot account for thenatureandscopeofdisagreementaboutlaw.3) Theruleofrecognitionisnotaconvention.Is the rule of recognition a convention? In a way the question is ambiguousbetweentwoverydifferentclaims: Oneisthattheruleofrecognitionisconventional and the other is that it is a convention. At one point both GeraldPostema andI (separately) suggestedthat the rule of recognitionis aLewis-likeconvention(Coleman, 1982; Postema1982). I cannot attest to16I have pursued this discussion of the concept of legitimate authority to emphasize the pointI have been making from the outset, namely, that the major contribution of ILP is that it hashelped focus attention on central jurisprudential concerns including the relationship betweenthe nature of law and the nature of authority. I hope the above discussion gives some credenceto that claim. The argument from authority is merely one of a family of arguments designedto show that ILP rests on a confusion or mistake or that it is inconsistent with other importantfeatures of law. Scott Shapiro has offered several different lines of attack against versions ofILP. InHartsWayOut, hearguesthat Hartscommitment towhat hecallsthepracticaldifferencethesisisincompatiblewithHartsadoptingILP; Shapiro1999, 454. AndinhiscontributiontothissymposiumhearguesmoregenerallythatILP isincompatiblewiththelawasplans. Theargumentispowerfulandvalidbutreliesofcourseonthecontroversialclaimthat laws areplans. I couldnot possiblyhopetodojusticetoShapiros powerfulargumentsinthiscontext. Myclaimisnot that ILPiscorrect, but onlythat noargumentagainstithassucceeded.PerhapsShapiroswill,butthatwilldependonhisdemonstratingthatlawsareplansrst. SeeShapiro2002, 387.373 Beyond Inclusive Legal Positivism2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3Postemasmotivationfordoingso, butIcanspeaktomyownconcernsandmotivations. I wasworriedabout howpositivismcouldexplainthenormativity of law. In The Concept of Law, Hart implied that all legal ruleswere social rules and that this fact about them allowed his view to explainthe aptness of obligation when talking about the role of law in normativespace. He was contrasting his viewwiththe commandtheory whoseimpoverished set of resources left it unable to distinguish being obligatedfrombeingobliged.The rst problem with Harts account is that it is not true that all lawsaresocialrules. InfactforHartonlyonelegalrulemustbeasocialruleand that is the rule of recognition. The rule of recognition is supposed tobe binding or obligatory for those governed by it, namely, officials. And so,Iworried, howcansocial rulesgroundobligations?Whataccountcouldone give of the rule of recognition that was sympathetic to its being a socialrule and at the same time explaining how it could be a source of reasonsfor those governed by it? I thought the problem could be solved if the ruleof recognitionwere a Lewis-convention. Sucha conventionis a Nashequilibrium, which means that every person governed by it would have areason to comply with its demands in the sense that no person would havea reason unilaterally to defect, that is, not comply. All would have reasontocomplyprovidedthatotherscompliedaswell.However imaginativeandwell motivatedmysuggestionwas, it wasimplausible and less helpful than I had hoped. A convention is a solutionto a distinctive kind of coordination game. These games are dened by thepreference structure of participants. Other orderings of preferences are notcoordination problems and their solutions are not conventions in therelevant sense. This fact about coordination games proved to be myargumentsundoing.Hart holds that a rule of recognition is a necessary feature of law; thereis no law without a rule of recognition. Were I correct in thinking that theruleofrecognitionisaLewis-convention, itwouldfollowthatlawcouldexistonlyifaLewis-conventionexists. Thatimpliesthatlawcouldexistonlyif thepreferencesof therelevant officials, includingjudgesinpar-ticular, werealignedasaformal coordinationproblemtowhichLewis-conventionsareasolution. That impliesthat officialshavingpreferencesexhibitingacertainstructureisanecessaryconditionfortheexistenceoflaw. Andthat, I fear, isnot aplausibleexistenceconditionof law.17Ofcourse it is possible that judges have preferences structured in a way thatdenes a coordinationproblem. It is possible, but not likely, that thishappens often. It is even possible, but wildly unlikely, that this happens allthe time. What is not plausible is that their having preferences structuredinthiswayisanecessaryconditionoftheverypossibilityoflaw.17ThisisthegistofScottShapirosobjection.374 Jules L. Coleman2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3Although the idea that the rule of recognition is a convention has turnedoutnottobeparticularlyhelpful, onceittookholditwasnearlyimpos-sible to dislodge either positivists or their critics from it. No one has beenhappier saddling positivism with the view that the rule of recognition is aconvention than Dworkin, and I cannot blame him for taking advantage ofthe fact some positivists have been slow to run from it while others haveembracedit.If the rule of recognition is a convention, how are we to explain it as asourceofjudicialobligation?DworkinposestheprobleminawaythatIlike to think of as a dilemma: If the rule is a convention, then the scope ofthe duty it imposes depends on its content, and its content in turn is xedby the scope of convergent behavior. Where convergent behavior runs out,so too does the convention; and where the convention runs out, so too doesthe duty of officials to act as it demands. One horn of the dilemma, then,is this: If we treat the rule of recognition as a convention, we end up withtoo little content and therefore not enough constraint or obligationunderit.On the other hand, judges can disagree about what the rule requires ofthem. Theirscannotbeadisagreementaboutwhattheyconvergeon. Bydenitionit isadisagreement about what theydonot convergeonandabout what the rule requires. If that is so, then the duties the rule imposeson them cannot be xed by the scope of their convergent behavior. This isthe secondhornof the dilemma. If the rule of recognitionis a duty-imposing rule it cannot be a conventional rule, it must be a normative rule.Eithertheruleofrecognitionisaconvention,inwhichcaseitspeciestoo little bythe wayof judicial constraint andcannot make sense ofdisagreementaboutitscontent;oritcanexplainthefullscopeofjudicialduty as well as meaningful disagreement but it cannot be a convention. InhisearlierworkDworkinthoughtthatthismeantthattheruleofrecog-nitionmust beanormativerule. Lateronhesimplyrejectedforrelatedreasons the very idea of a rule of recognition and introduced the notion ofconstructive interpretation that forsakes (as we shall see) the idea of criteriaoflegalityaltogether.1818Ultimately, asIhavesuggested, Dworkinrejectstheideathatlawinvolvesthenotionofcriteria. Hedevelops most of his arguments inthecontext of offeringobjections tolegalpositivism. He invariably characterizes legal positivism in terms of a rule of recognition, butmore generally in terms of a commitment to the conventionality of law. The commitment totheconventionalityof lawisexpressedintermsof thecriteriaof legality. Thecriteriaoflegalityor laware determinedconventionallyor set out inaconvention(that is at thefoundation of lawparadigmatically, but not necessarily, in a rule of recognition). I mentionthis because the notions of conventionality and criteria of legality are often lumped togetherboth for the positivists and for Dworkin. His ultimate target, I believe, is the idea of criteria,butmuchofhiswell knownattackisonconventionality. Onmyreading, thoseattacksonconventionality are best seen as either indirect ways of attacking the notion of criteria or asbrush clearing necessary to face the notion of criteria straight on. Many of his concerns aboutcriteriathenareapproachedthroughobjectionstoconventionality. Hisargumentstherefore375 Beyond Inclusive Legal Positivism2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 36. From Doubts about Conventions to Doubts about CriteriaThereadermayrecallthatDworkinsrstworriesabouttheconvention-alityof theruleof recognitionaroseinresponsetomysuggestion(thecoreclaimof ILP) that theruleof recognitioncouldspecifymoralityasa conditionof legality. Dworkinclaimedthat moralitycouldnot be acondition of legality for two reasons. First, he held that legal positivism iscommitted to law consisting in hard (not soft) facts and morality is a softfact (though those of us who nd its demands quite hard sometimes woulddisagree). I have already expressed my views about this very implausibleline of objection. Second, he suggested that there is too much disagreementabout what moralityrequires for moralitytobeaconditionof legalitywithin the structure of a rule of recognition that is a convention. In otherwords, judgesaskedtoimposemoral constraintsonlegalitywill exhibittoo much disagreement in their conduct for the rule that imposes the dutyonthemtodosotoconstituteasocialrule, thatis, aruleconstitutedbywidespreadconvergentbehavior.This objection cuts no ice. My response (which is one of the fewresponsestoanobjectionaboutwhichIremaintotallyconvinced)isthatthe rule of recognition requires that officials converge on applying relevantmoral standardstoassesslegality, notthattheyagreeonwhatapplyingthose standards requires in particular cases. Convergence on the criteria isperfectlycompatiblewithwidespreaddivergenceonwhatfallsunderit;theformer (convergenceoncriteria) andnot thelatter (convergenceonapplication)isrequiredbytheconventionalityoftheruleofrecognition.This response is entirelyconvincing, but it merelyset the stage forDworkins deeper concern, which is that if the criteria are xed byagreement among officials, there is no way to make good sense of possibledisagreementsamongthemaboutwhatthecriteriaare. Yetdisagreementaboutthecriteriaoflegalityorthegroundsoflawisasalientfeatureoflegal practiceandcertainlyonethat anyplausibletheoryof lawmustaccount for. Sinceconventions arexedbysharedbehavior amongtheofficials, they cannot exist if there is disagreement about what the contentbegin by associating criteria of legality with the existence of a convention that xes what thosecriteriaare.Thecriteriaoflaw(inacommunity)areexpressedinaconvention,whichistosaythat theyarexedbytheconvergent behavior of therelevant officials. If agreementamongofficials xes thecriteriaof legalitythenit is impossibletoexplaindisagreementamong officials as to what those criteria are. Positivism can explain disagreement about whichnormssatisfythosecriteria, butitcannotcountenancemeaningfuldisagreementastowhatthosecriteriaareforthesimplereasonthatthecriteriaarethemselvesxedbyagreement.Sowhatwewanttodonowistracehowtheworryaboutconventionalityandtheruleofrecognitionultimatelybecameamuchdeeperworryabout thecentralityof criteriathem-selves. I want to do this by demonstrating the important role ILP played in ultimately movingthe debate beyond its initial boundaries to much more signicant issues that are leftuntouched by ILP but whose place in the limelight of jurisprudence owes at least somethingtothecontributionmadebyILP.376 Jules L. Coleman2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3of theconventionis. Thus, its commitment toconventionalismrenderspositivismunabletoexplainthenatureandscopeoflegaldisagreement.Obviously, thisobjectionrestsonhowweunderstandtherelationshipamongthreedifferentideas: conventionality, criteria, andconvergenceofbehavior. We cannot assess it, however, until we clarify these notions andespecially their relationship to one another. Lets see if we can provide atleastsomeoftheneededclarications.Iputthefollowingdistinctionsintermsof rulesof languageinpart toset thestageforthediscussiontofollowoftheso-calledSemanticSting.1) Contentclaims:(a) The content of a conventional rule is xed by the scope ofconvergentbehavioramongthosegovernedbytherule.(b) Thecontentofaconventional ruleisxedbysocial factsaboutthebehaviorandattitudesofthosegovernedbytherule.192) Knowledgeoraccessclaims:(a) Withrespect toatermor concept, competent speakers of thelanguage each have access to the criteria specifying its proper useinthesensethat eachspeakerknowsorhaspersonal accesstothosecriteria. (IndividualCriterialism).(b) Withrespect toatermor concept, competent speakers of thelanguagehaveaccesstothecriteriaspecifyingitsproperuseinthe sense that there are experts in the linguistic community whoknow the criteria and the best explanation of the linguistic behav-iorofcompetentspeakersmoregenerallyrequiresattributingtothemtheintentionwhenusingthetermtobereferringtothosecriteria. (Community-wide CriterialismDivision of LinguisticLaborCriterialism).203) Theexistenceclaim:19It may be easier to see what I have in mind if we shift focus from law to language. Howmight we make out a conventionalist view of language (use)? One view might hold that thecontent of the rules governing linguistic usagewhat the language rules permit or prohibitarexedbyconvergentusage. Wherethereisdivergentbehavior, thereisnorule. Anotherview might hold that whatever the rules require, they are the rules that govern because theyare practiced and supported by those to whom they are addressed (speakers of the language)in the right kind of way. Presumably, that means there is a sufficient convergence on the rulesas standards by which the linguistic behavior of language speakers is assessed. The latter isthe more plausible interpretation of the claimthat language is conventional. Ordinaryspeakers of the language generallyconverge intheir adoptionanduse of certainrulesgoverningtheuse. Thesestandardsareimplicit intheir speechandaremadeexplicit onoccasions whentheyare requiredtoexplaintheir linguistic behavior or tocriticize thebehavior of others. It is ludicrous tothinkthat competent speakers of thelanguagecanexpress the content of the rules; and there is even less reason to suppose that the content ofthoserulesisxedbytheextenttowhichtheirlinguisticbehaviorconverges.20The criteria are xed by shared behavior. Where there is no convergence, there are no criteria;where there is no convergence, there is no duty; where convergence runs out so too does duty;and so on. This is the notion that Dworkin invariably exploits against the positivist.377 Beyond Inclusive Legal Positivism2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3(a) Theexistenceandenduranceofaconventionalruledependsonitsbeingpracticed(andotherpossibleconditions).21Dworkinattributestopositivismaconventionalismabout thecriteriaoflegalitythatconsistsintheconjunctionof(1)aand(2)a.22Toseethis,oneneed only revisit the notorious semantic sting argument in Laws Empire(Dworkin 1986, 45). The semantic sting argument begins by attributing tolegalpositivismasemanticprojectsuchthatlegalpositivismistheviewthat the aim of jurisprudence is to provide a theory of the meaning of theterm (or concept) law. A positivist theory of law is a theory of law. Thisisnotapromisingbeginning.Dworkin goes on to argue that legal positivists are not only committedtoprovidinganaccountofthemeaningoflawbutthattheyholdthatthe meaning of the term law is xed by criteria specifying its proper use.Those criteria are a set of necessaryandsufficient conditions andaresharedbycompetent speakersof thelanguage. Thecriteriaarexedbyshared usage to which competent speakers have access. The philosophicalproject of jurisprudence is to uncover the criteria for the proper applicationof law by exploring ordinary usage, reecting on it, and systematizing it.Thegist of thesemanticstingnowfollows naturallyfromthesetwocentral attributions. If thecriteriaof lawarexedbyusagesthat aresharedbycompetent speakersof thelanguage, thentheycannot mean-ingfully disagree about what those criteria are. Dworkin then notes, quitecorrectly, that a salient feature of law(not law mind you) is thatcompetent lawyersandofficialsdisagreeabout thecriteriaforbeingthelaw of a particular community. Disagreement about the criteria of law is asalient feature of legal practice that legal positivism cannot account for invirtue of its conventionalism/criterialism. This is just another way ofexpressinghis attributionof (1)aand(2)atolegal positivism. Botharenecessarytogeneratethesting; theabsenceofeitherrendersitharmless.As Ori Simchen and I demonstrate in Law (Coleman and Simchen 2003)Dworkinssemanticstingargument isinvalidandunsoundat best, andprobablyanon-sequituraswell. Intherstplace, itdrawsaconclusionabout thecriteriaforlawfromaninsight about thecriteriaof law. Itclaimsthatjudgesdisagreeaboutthecriteriaforanormconstitutinglawintheir jurisdictionwhichis trueandinfers fromthat theydisagreeabout the criteria for the proper application of the concept or term law.If they agree about the criteria of law then such disagreement would beimpossible.21Hartsnotionof aruleof recognitionisauseful illustration: theruleexistswhenit ispracticed, that is, there is sufficient convergent behavior andacritical reective attitudetowardthatbehavior.22Incontrast, myviewis that conventionalismabout language (or law) consists intheconjunctionof(1)band(3).378 Jules L. Coleman2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3This is seriously confused. For it is perfectly compatible with criterialismabout law that lawyers disagree about the criteria of law. It may well bethat part of the criteria of law that all competent speakers of thelanguageshareisthat lawisawayof regulatinghumanaffairsdistin-guished (among other things) by the fact that lawyers and judges disagreeabout what thecriteriaforanormsbeinglawintheircommunityare.Disagreementaboutthecriteriaoflawispartoftheapplicationconditions, thatis, thecriteriaoflawthatcompetentspeakersofthelanguageshare.Next, lets consider Dworkins attribution of (2)a to the positivist.Readers familiar with our paper know that we argue that the reference oflaw is not xed by criteria of any sort, but lets ignore that for a momentand allow Dworkins ascription of some or other form of criterialism to thepositivist. He attributes individualistic criterialism to the positivist, whichhe must do in order to render the possibility of meaningful disagreementa problem for them. In fact, however, individual criterialism is apt only forcertaintermsinanatural language(one-criteriontermslikesow) andlaw is not among these. If the reference of law is xed by criteria (andit is not), the notion of criteria that is apt is community-wide criterialismwhichrelies onPutnams notionof a divisionof linguistic labor ([2]babove).Finally, meaningful disagreementisrenderedimpossiblebyattributingto legal positivists (1)a, but this is wildly implausible. Those who adopt theviewthatcertainrulesareconventionalmeantoclaimtheconjunctionof(3) and(1)b. The existence of the rule as a standarddepends ontheexistence of a practice with regard to it(3)and not, by way of contrast,its truth. The content of the rule is determined by social facts(1)bandnot, bywayofcontrast, moralorothernormativefacts.23Thereisnoproblemat all incomprehendingthepossibilityof mean-ingful disagreement about the criteria of legality. The content of the criteriaare determined by facts about behavior and attitude, but not in the crudewaythat Dworkinattributestolegal positivistsinwhichthecontent isxednarrowlybythescopeofconvergentbehavior. Justthinkhowoddthat view would be in the context of conventional rules generally, includ-ingespeciallytheconventionsgoverninglinguisticusage. Finally, totheextentthatconvergentbehaviorguresinthecharacterizationofconven-tional rules it bears on their existence and endurance, not on theircontentatleastnotontheircontentasin(1)aor(2)a.23So when someone claims that the rules of language use are conventional, he means to saythat what they are depends on what people do, but, how it is that what they do determinesthe content of the rule is itself a matter of great theoretical interest. In other words, how socialfactsmakesocialrulesisamatterofinterestanddisagreement.Theclaimofconvention-alismistheclaimthat suchfactsaretheconstituentsof suchrulesandtheplausibilityofconventionalism ultimately depends on the plausibility of that claim. For some doubts aboutpositivistaccountsofhowfactsmakelaw, seeGreenberg2004.379 Beyond Inclusive Legal Positivism2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3I dont thinkthat Dworkinhasmadetheheadwayagainst legal posi-tivismthat hethinkshehas. Evenwerepositivistscommittedto(1) theimpossibility of law without criteria of legality, (2) conventionalism aboutthe foundations of law, and(3) the viewthat the criteria of lawareexpressed in a convention at the foundation of law,24Dworkins argumentswouldnot prevail. Positivismwouldbe quite capable of providinganexplanation of how meaningful disagreement about the criteria of legalityispossibleorsoIhavejustargued.Dworkins argument against positivismserves a strategic role inhisoverall argument that is(fortunately) unnecessary. Thestrategyof LawsEmpiretakestheformofadisjunctivesyllogism: Jurisprudential theoriesare either interpretive or semantic; the semantic sting shows they cannot besemantic; therefore, jurisprudential theories must be interpretive. Thatargument is invalid, but its invalidityhas nobearingonthe value orinterestoftheinterpretivismthatDworkinoffers.Relatedly, andtomymind, moreimportantly, Dworkinsreal targetisnot semantic theories of law or even conventionalism about law. It is muchbigger and more important. His target is the very idea that thinking aboutlawcommits us tothinkinginterms of criteria of anysortwhethercriteria distinguishing the legal from other domains, or criteria for distin-guishing the law of this community from the law of other communities. ItistothisfeatureofhisviewthatIwanttoturninthenextsection.7. Beyond Criteria of LegalityOnecannothaveasustaineddialoguewithouttreatingsomefeaturesasxedinthecourseoffocusingonothers. InordertointroducemyclaiminNegativeandPositivePositivism(Coleman1982)thatlegalitycouldbeacriterion of legality, I had to take as given the other central features of theHartianframework. Overtime, I wasentrappedbythem, especiallytherule of recognitionandthe separability thesis. Initially I was trappedbecause I was offeringa wayout for Hart andsoI hadtooffer mysuggestion within the Hartian framework. I could not shake loose the ruleof recognition because I formulated ILP in such a way that it depended onthe existence of a morality as a condition of legality clause. I was trappedbytheseparabilitythesisbecauseIwaschallengedtoshowthatILP wasconsistentwiththeseparabilitythesis.Asithappens, Irejectboththeruleofrecognitionandtheseparabilitythesis. In what follows I explain my doubts about both and then formulatethe central claim of ILP without relying on either notion. One consequence24Hart is committed to all three of these, but positivists in general are not. Raz in particularis committed to (1) but to neither (2) nor (3). I am not sure that I would accept either (1), (2),or(3). Toseewhyseeinfra.380 Jules L. Coleman2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3of abandoning the rule of recognition is that it has allowed me to rethinktheveryideaof criteriaas central tolaw. This is apoint I mentionedalreadyinreferencetoDworkinandinwhatfollowsIhopetosayabitmoreaboutitallofittentative, Ifear, andfarfromconvincing.I begin by raising a few concerns about the rule of recognition. One wayof reading Hart is to treat the rule of recognition as a conceptual require-mentofourcapacitytospeakmeaningfullyaboutlaw. Wecannotmakesense of a domain of activity called law without presupposing some notionlikethatofaruleofrecognition: arulethatsetstheboundariesbetweenlawandother ways of regulatinghumanaffairs suchas morality, andpricingmechanisms.Ihaveacoupleofworriesaboutthiswayofthinking, however. IowemydoubtstomyreectionsonRazandDworkin. Letmeexplain.AsI readhim, Raziscommittedtotheconcept of criteriaof legality.After all, the argument from authority is all about exploring constraints onthecriteriaof legality. Razalsorefers torules of recognitionbut heisnowhere committed to anything like Harts notion of a rule that unies alegalpracticeanddistinguisheslegalsystemsfromoneanother. So, evenif Raz is committed to criteria of legality and to rules of recognition, he doesnot embedthenotionof criteriaof legalityintheconcept of aruleofrecognitioninHartssenseoftheterm.Actually Raz says very little about some aspects of the criteria of legality.His focus is on the connection between conceptual features of law (i.e., theclaim to legitimate authority) and constraints on criteria of legality. He haslittle if anything to say about the sources or grounds of the criteria, that is,howtheycometobethecriteriainaparticularcommunity. TheusefulcontrasthereiswithHartwhoseruleofrecognitionisanaccountofthefoundations or grounds of the criteria of legality. Hart thinks it imperativeto introduce a rule of recognition in order to speak meaningfully about lawbecause the domain of the legal presupposes criteria of legality and thosecriteriamustbeunderstoodintermsofaruleofrecognition.AsI amreadinghim, RazagreeswithHart that inordertospeakoflegalityweneedtopresupposethat therearecriteriaof legality, but hedisagreeswithHartinthatheseesnophilosophical needtoexplaintheorigin or ground of those criteria. Instead, we have to understand whetherother features of the concept of the legal impose constraints on what thosecriteriacanbe. Thatistheconcernofjurisprudence.I think that Raz and Hart are both onto important, but different, things.There is no question that Raz is right in thinking that even if the existenceof criteria of law or of legality is a presupposition of the possibility of lawor of the legal domain we do not need to posit anything like Harts notionof a rule of recognition. On the other hand, I think Hart is on to somethingabout the sociality of law that is missing from Razs account. Whatever theproblemswithHartsnotionof aruleof recognitionmaybe, oneof its381 Beyond Inclusive Legal Positivism2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3great values is that it identies law with a kind of coordinated social activity.IamnotsurethatHartisrighttohavefocusednarrowlyonjudgesanymore than he is right to have focused on a rule of recognition as a way ofarticulating the notion of criteria of legality. I do think he has an insight inthinking that we do not grasp what law isand our theories of it will fallshortif we fail to identify the distinctive social aspects of it. The relevantsocial aspects of law are those at its foundation, specically, its organizingandcoordinatingsocialfoundation.It ispossibletothinkthat thedistinctivelyphilosophical taskofjuris-prudence is to explore whether there are constraints on criteria of legality,holdingineffectthatotherissuespertainingtothecriteriaoflegalityfalloutside the ken of jurisprudence or philosophical inquiry. It is a matter of,forexample, historyorpolitical sciencetodeterminehowthecriteriaoflegality come to be what they are in this or that community. It is a matterof political science, say, to gure out which institutions are the distinctivelylegalones, andsoon.I havenoproblemwiththedivisionof jurisprudential laborbetweenphilosophy and the social sciences. My worry is whether we are asking toolittle of philosophy and whether we will fail to identify the essential natureof law if we ignore the distinctively social aspects of law as a form of socialorganizationortouseShapiros wayof thinkingas aplanandas adistinctwayofplanning.If Raz can be read as abandoning the centrality of the rule of recognitionas central to understanding law, then Dworkin can be read as encouragingus toabandonnot just Master Rules, but criteriaof legalityaltogether.Whatever one thinks of the success of his arguments in Hard Cases or LawsEmpire, it is clear that Dworkins claims about law make very good sensethough there is no reference to anything like a rule of recognition, or moreimportantly, to criteria of legality (Dworkin, 1986; 1975). In Hard Cases lawis characterizedas a subset of political rights, namely, those that arecoercivelyenforceable; andinLawsEmpirelawischaracterizedasthosepolitical principles that provide the best explanation of a set of pastpoliticalacts(inparticularjurisdictions).To be sure some positivist-inclined commentators have tried to press theargumentwithout success in my viewthat Dworkin has to presupposethe idea of a rule of recognition in order to pick out those political acts thatcall for interpretation and to distinguish them from those political acts thatdo not. These arguments fail for two reasons. First, even if Dworkin neededto appeal to a standard for distinguishing the political acts that count fromthose that do not, it would hardly follow that the standard he needs wouldamount to a rule of recognition in Harts sense. A rule of recognition in thatsense is, after all, a particular kind of standard that carries with it a rangeof additional commitments (e.g., conventionality, non-revisability, the inter-nal point of view, and so on). Second, it is not obvious that Dworkin needs382 Jules L. Coleman2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3anything beyond a set of past political acts that are paradigm cases of thesort of acts that constitute legal activity (e.g., legislative enactments,judicialdecisions)inordertogettheinterpretiveprojectgoing.IamnotaDworkinianofcourse, andhisownjurisprudentialaccountmayfail, but if it does it wouldnot bebecauseit lacks thenotionofcriteria of legality. If that is so, I am inclined to think that not even thenotion of criteria of legality is part of the concept of law. It is instead partofadistinctivewayofthinkingaboutlawthatiswidespreadandmuchendorsed, andnot just amongpositivists. The vast majorityof naturallawyers theorize about law in a similar way: They focus on the project ofidentifyingwhichinstitutionsandactionsaredistinctivelylegal.There is aworryabout Dworkins account that harkens backtomyconcernaboutRazs.Onethingthatismissingwhenwethinkaboutlaw(as Shapiro aptly puts it) from the perspective of outputswhether theseoutputs are principles or enforceable political rights or coercively enforce-ablenormsmoregenerallyisthat wemissanessential featureof lawwhichisthat it involvessomecentral organizing, coordinatingactivitiesregardlessofwhatthenatureorfocusoftheseactivitiesis.The great value of Harts account is that he places this organizing socialactivity at the foundation of law, even if the details of his approach are notultimatelycompelling. Likewise, it isthegreat insight of Scott ShapirosLegality that the law is both the product of a social activity and a distinctivekind of social activity. My worry, then, about both Raz and the Dworkin-iansisthattheyunder-theorizethesocialaspectsoflaw.8. Beyond the Separability ThesisIndistinguishinglegal positivismfromotherjurisprudential views, mostcommentators areinclinedtoidentifypositivismwiththeseparabilitythesis: the rejection of a necessary connection between law and morality.Certainly, Hartemphasizedtheimportanceoftheseparabilitythesis, theideathat thereisadistinctionbetweenwhat lawisanditsmerit ordemerit. I have referredtoall suchtheories as versions of negativepositivism.Myobjectiontonegativepositivismusedtobenotthatitisfalse, but that it is soobviouslytrueas tobeof littleinterest. Thingschange, for I now think that the separability thesis is no part of positivismatall, andthatitisinanycaseverylikelyfalse.If the separability thesis is not the core of legal positivism, then what is?In my view, the core of legal positivism is the social facts thesis. As we shallsee inthe next sectionof the essay, we candistinguishbetweentwoversionsof thesocial factsthesis. Roughly, oneversionholdsthat onlysocial facts contribute to legal content. The other holds that only social factsdetermine what facts can contribute to legal content. The rst view is Razs;the second is mine. For the purposes of focusing on the separability thesis383 Beyond Inclusive Legal Positivism2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3we can ignore these subtle differences. For ease of exposition, lets acceptthe Razian formulation of the social facts thesis. In that account, only socialfactscancontributetolegalcontent.The claimthat only social facts contribute to legal content impliesnothing about the morality of legal content. One is a claim about the stuffof which law is comprised; the other is a claim about whether law exhibitsany necessary moral properties. It may be that only social facts contributeto legal content, but that in order for a scheme of regulating human affairsto count as law it must satisfy a set of moral constraints. These are just twodifferent kinds of concerns: One is what law is comprised of; the other iswhatifanythingcanbesaidfromthemoralpointofviewaboutlaw.259. Reformulating ILPIamascommittedtoILP todayasIhaveeverbeen.InthisessayIhavedefended ILP against the two most powerful lines of objection to it.26Freedof the theoretical burdens imposed by Harts reliance on the rule ofrecognition, criteria of legality, and the separability thesis, how should weformulate the central ideas of ILP? My suggestion is that we can formulatethe core idea of ILP as a claim about the constituents of legal content.27AsIseeit, wecandistinguishamongthreeclaims:1) Necessarilyonlysocialfactsaredeterminantsoflegalcontent.282) Necessarilymoralandsocialfactsaredeterminantsoflegalcontent.3) Necessarilysocialfactsdeterminethedeterminantsoflegalcontent.25See, e.g., Rosen, unpublishedmanuscript. ThereareotherreasonsforrejectingtheSepa-rability thesis that I have noted in my work before, for example, there is no reason why a setof moral constraints cannot be imposed on what counts as law, where law is understood asamodeof governinghumanaffairsbyreason. I mentionsuchconstraintsinanumberofplaces, includingmyOJLSHart Lecture: Coleman2007. Thesearemorenarrowlycircum-scribedobjectionstotheseparabilitythesisthantheoneIamemphasizingabove.26Ontheotherhand, I havelongresistedmakingbroad(andtomymindunwarranted)claims onits behalf. I havenot offeredit as acompletejurisprudential viewnor haveIpresented it as the best version of positivism or even as the best account of Anglo-Americanlegal practice. Others have advanced this and similar claims and it may well be that they seemore promise in ILP than I have. Perhaps they are right; and if so, I hope I will be forgivenfor my more modest ambitions especially if they have led me to undersell or undervalue ILP.27I amnot claimingthat theseconstitutefull jurisprudential viewsof course. After all, Iexplainsuprawhyanytheoryoflawwouldhavetoexplainthedistinctivesocialityoflaw.Heremyaimis onlytodistinguishthekinds of views availablebywhat theytaketheconstituentelementsoflegalcontenttobe.28When I use the phrase, the content of law is xed only by social facts or only social factscan contribute to legal content I am speaking loosely and intentionally so. Of course, I meantoincludenatural facts, institutional facts, andsemantic facts as well. Notheoryof lawprecludesthem. Thepoint isjust toprecludenormativefacts. It isthedifferencebetweentheoriesthatincludenormativefactsandthosethatallowthemthatIamemphasizingandI use the convenient phrase only social facts to mark that difference. This is the prevailingconventionIbelieve, butIneverthelessfeel itisnecessarytobeexplicitaboutitsoasnotunintentionallytomisleadthereader.384 Jules L. Coleman2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3There are other possible views but these are of special interest tous.(3)isthecoreclaimofILP; (1)isthecoreclaimofexclusivelegal posi-tivism; and(2) representsthecentral claimof all natural lawpositions.BothDworkinianinterpretivists andclassical natural lawtheorists arecommittedtooneor another versionof (2). For Razians (1) is entailedby the argument fromauthority. For Dworkinians (2) is entailed byinterpretivism.29Obviously (1) and (2) differ substantially from one another. On the otherhand, their leading proponents, Raz and Dworkin, respectively havemoreincommonmethodologicallythanonemightthink. Bothsharetheviewthatoneuncoversthenatureoflawbyexploringitsconnectiontofundamental issues in political philosophy. Raz takes the relevant problemof political philosophy to be specifying the conditions of legitimate author-ity. Fromthereheproceedstoarguefor(1).ForDworkinthecentralprobleminpoliticalmoralityisansweringthequestion: What justiestheuseof collectiveforce(coercion)?Lawisananswer tothis question. The fact that lawis understoodas supplying(successfullyornot)thejusticationfortheuseofcollectiveforceentailsinterpretivism, which, inturn, yields(2).Whereas for Raztheclaimtoauthorityrequires that legal directivesfunctionas a wall betweenagents andthe reasons that wouldjustifytheir actions, for Dworkinthe claimtojustiedcoercionrequires thatlegaldirectivesbeawindowthroughwhichthebackgroundreasonsthatapplycanbeseen.30ForRaz,theclaimtoauthorityisvitiatedifthewallcomesdown. ForDworkin, justiedcoercionrequiresthat thedirectivesserve merelytopoint us tothe principles that provide the best inter-pretation of them. If the sunlight of the relevant moral principles isblocked fromshining through, the claimto justied coercion goesundefended.Unlike (1) and (2), (3) is not entailed by any claims about the nature oflawor of our concept of it nor does it derive fromany more basiccommitmenttheoretical, practical or normative. As regards (3) I take mytasktohavebeen(1)toexplainwhatisessentiallypositivisticaboutthisclaim; (2) to defend this view against the charge that it is (a) incoherent, (b)incompatible with legal positivism, (c) incompatible with conceptual truthsabout law or (d) incompatible with essential properties of law; and (3) to29Interpretivismistheviewthatpastpolitical actsaresocial facts, andthatlawisthesetofprinciplesthatprovidesthebestexplanationofthosefacts.30Finally, one canreachthe conclusions Raz andDworkinreachabout the constituentelements of legal content without adopting the general methodological approach that Raz andDworkin adopt. Scott Shapiro and Andrei Marmor are both committed to (1) for very differentreasons, but neither nests their substantive jurisprudence in normative jurisprudence. By thesametoken, MarkGreenberg, NicosStavropoulos, andStephenPerryall adoptsubstantivejurisprudentialviewssimilartoDworkins, butnoneofthemdrawtheirsubstantiveclaimsbybeginningwiththeDworkinianinterpretivemethodology.385 Beyond Inclusive Legal Positivism2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3display its intuitive appeal. I leave it to others to determine whether I havesucceeded and whether this is enough to recommend it, not as a jurispru-dence, butasanaccountoftheconstituentsoflegalcontent.10. The Sociality and Normativity of LawIt isacommonplacethat lawisanormativesocial practice. Most com-mentators come to the conclusion that in one or another formlegalpositivism does a good job of capturing laws social nature, but a poor jobof capturingits distinctive normativity. Incontrast, natural lawis pre-sumed to provide an especially plausible account of the normativity of lawand a less than persuasive account of its social or institutional dimensions.We need to move beyond these comic-book characterizations which are,if anything, toogenerous tobothlegal positivismandtonatural lawtheory. I am skeptical that positivists have provided persuasive accounts ofthesocialdimensionsoflegality.31Thereis, somethingessentiallycoordi-nativeandcoordinatingatthecenteroflaw, andpositivistsneedtosaysomething helpful about it. My efforts to do so have not been persuasive;norhaveHarts. Othershavenot seenthepoint oftrying. Tohiscredit,Shapirotakesonthisburden. Timewilltellhowwellhedoes.If positivismhasnot quitemeasureduptoitspressclippingsonthesocial side of law, natural law theory deserves a similar report card on thenormative side of the ledger. Nevertheless, the normativity of lawisthoughttopresentaspecial problemforlegal positivism. Thisismyste-rious tome, but it must havesomethingtodowithlegal positivismsassociation of law with social facts. What else would explain why so manycommentatorsareconvincedthat theproblemdoesnot arisefornaturallawyersorwhytheybelieveitislesspressingforthem?32Lets begin by distinguishing among three different kinds of concerns theworryaboutthenormativityoflawmightpresent:1) Concernsaboutdutyofdelitytolaw.2) Concernsaboutthejusticationofcoercion.3) Concernsaboutthecapacityoflawtogivereasons.Letstaketheseupinorder.Inclaimingthatlawisanormativepractice,onemighthaveinmindthedutyofdelitythosegovernedbylawhaveto it. The duty of delity to law can be understood as the requirement torespect andsupport its institutions, which wouldinclude but not be31Tobesurepositivistsall holdsomevariant of thesocial factsthesisbut noonecouldseriously entertain the view that the claim that legal facts are social facts is an account of thesocialdimensionsoflaw. Thereismoretosocialitythansocialfacts!32My view is that whatever the problem of explaining the distinctive normativity of law is,it is as much a problem for natural lawyers as it is for inclusive and exclusive legal positivists.386 Jules L. Coleman2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3restrictedtoactingincompliancewiththoseofitsinstitutionaldirectivesthat apply. Lon Fuller emphasizes the duty of delity to law and he takesthis dutytocreate a special problemfor positivists whoinadequatelymoralizelawandlegality.It is an open question whether law necessarily demands delity. Supposeitdoesandthatdelityrequiresthatthosegovernedbylawsustainandsupport its institutions and (generally) comply with its directives. Itfollows that a theory of law must have resources adequate to ground theduty of delity so conceived. Does the duty of delity to law raise a specialproblemforpositivistsinvirtueoftheirclaimthatthecontentoflawisxedbysocialfacts?Icannotseewhyitwould.TheSourcesthesisisaclaimabout thestuff of legal content andnotabout the value or merits of law (the thing that is composed of that stuff).Presumablylawcanserveanumber of valuablesocial endsincludingcoordinating human activity efficientlyand it may do this better than anyother alternative form of social planning or control. If it does so in a way thatallows individuals to promote their projects and plans autonomously andwithout undue interference, it may well be deserving of support andadherence, certainly insofar as others who are similarly situated adhere to itsdemands and in doing so contribute to its ability to serve its coordinatingfunctions. It would be odd indeed if law could serve desirable social endsonly if its content were xed by moral as well as social facts. What mattersto the duty of delity to law is not the metaphysics of legal content, but therole law plays in our lives and its relative success in playing that role.Nor do I see that natural lawyers are in any better position than are legalpositiviststoexplainthedutyofdelitytolaw.Whywouldthefactthatlawpassesamoral test implyadutyof delitytolaw?Manypossibleinstitutions may never do anything wrong (as judged from the moral pointof view) or require of us that we act contrary to moralitys demands; butthen again these very same institutions may seek to accomplish very littleandsucceedonlyintheirmodestandnotparticularlyhelpfulambitions.They may time and again miss opportunities to make our lives easier, morefullling, moresatisfying, andbetterintegratedwiththelivesof otherswithwhomweareinregularcontact. Suchaninstitutionpassesamoraltest narrowlyunderstood, but it seems implausibletosupposethat wehave responsibilities to endorse, support or sustain itin fact to doanythingatalltocontributetoit.Ifthereissomethingaboutlawassuchthatgroundsadutyofdelitytoit, itsurelyhassomethingtodowithhowlawaddressesthosewhoseconduct it governsthe respect it shows for the agency and autonomy ofthose it seeks to bind by its directives and its success in regulating affairsamongthegovernedandthefairnesswithwhichitdoesso.Perhaps in claiming that lawis a normative social practice one isdrawing attention to the claim that the relevant legal actors are justied in387 Beyond Inclusive Legal Positivism2009The Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22, No. 3coercively enforcing its authoritative directives. If so, there is an immediateproblemsinceit isnot anecessaryfeatureof lawthat itsdirectivesarelegitimateorthatthoseauthorizedbylawtoenforcecoercivelyitsdirec-tives are justied in doing so; more generally, it is not clear that the conceptof law carries with it the justication of coercion. In fact, it is clear that nosuchimplicationattachestotheconceptoflaw. Accordingly, thiswayofcapturing the claim that law is a normative social practice seems withoutpromisefromtheoutset.SomecommentatorsareanxioustoattributetoDworkinaclaimaboutlawandcoercionthatisverymuchintheneighborhoodofthisunprom-isinginterpretationoflawsnormativity. Theyreadhimasclaimingthatthe function of law is to justify the coercive authority of the state. Dworkinmakes no such claim, however, and it is a mistake to saddle him with thisequallyunpromisingpointofdeparture.33Dworkin does however make two interesting and plausible claims abouttherelationshipbetweenlawandcoercionthat onemight confusewiththese implausible ones. The rst of these is his view that law answers thequestionof what justies thecollectiveuseof force. If necessarilylawanswers this question, then law must be the sort of thing that could be ananswertothisquestion. Tosaythatlawisthesortofthingthatmustbecapableof answeringthequestionof what justiesthecollectiveuseofforce, is not to say that the answer law gives is the right one or even thatit is a plausible one. Thus, the fact (if it is one) that law necessarily answersthe question of what justies the collective use of force, imposes noconstraints on legal theory that are problematic for positivismor for anyothertheoryforthatmatter.On the other hand, were it part of the concept of law that it provides therightanswertothisquestion, thentheremaywell beconstraintsonthekindofthingthatlawisthatcouldproveproblematicforthepositivist.However, that is not the claim Dworkin is making; he does not make it forthe very good r