Conceptual Theories of Law

Assigned to: Member 3

• Differentiate between theories that affirm a relationship between law and morality versus
those that deny it.
• Discuss the core issues in conceptual theories of law:
o The relationship between law and morality
o Whether law can be understood independently of moral considerations.

• Introduce Ronald Dworkin’s position as a third theory, not easily classified in the binary
debate.

1. Analytic Jurisprudence
The principal objective of analytic jurisprudence has traditionally been to provide an
account of what distinguishes law as a system of norms from other systems of norms, such
as ethical norms. As John Austin describes the project, analytic jurisprudence seeks “the
essence or nature which is common to all laws that are properly so called” (Austin 1995,
p. 11). Accordingly, analytic jurisprudence is concerned with providing necessary and
sufficient conditions for the existence of law that distinguish law from non-law.

While this task is usually interpreted as an attempt to analyze the concepts of law and
legal system, there is some confusion as to both the value and character of conceptual
analysis in philosophy of law. As Brian Leiter (1998) points out, philosophy of law is one
of the few philosophical disciplines that takes conceptual analysis as its principal concern;
most other areas in philosophy have taken a naturalistic turn, incorporating the tools and
methods of the sciences. To clarify the role of conceptual analysis in law, Brian Bix (1995)
distinguishes a number of different purposes that can be served by conceptual claims:
1. to track linguistic usage;
2. to stipulate meanings;
3. to explain what is important or essential about a class of objects; and
4. to establish an evaluative test for the concept-word.
Bix takes conceptual analysis in law to be primarily concerned with (3) and (4).

In any event, conceptual analysis of law remains an important, if controversial, project in

contemporary legal theory. Conceptual theories of law can be divided into two main
headings: (a) those that affirm there is a conceptual relation between law and morality
and (b) those that deny that there is such a relation. Nevertheless, Ronald Dworkin’s view
is often characterized as a third theory partly because it is not clear where he stands on
the question of whether there is a conceptual relation between law and morality.

a. Natural Law Theory

All forms of natural law theory subscribe to the Overlap Thesis, which is that there is a
necessary relation between the concepts of law and morality. According to this view, then,
the concept of law cannot be fully articulated without some reference to moral notions.
Though the Overlap Thesis may seem unambiguous, there are a number of different ways
in which it can be interpreted.
The strongest form of the Overlap Thesis underlies the classical naturalism of St. Thomas
Aquinas and William Blackstone. As Blackstone describes the thesis:
This law of nature, being co-eval with mankind and dictated by God himself, is of course
superior in obligation to any other. It is binding over all the globe, in all countries, and at
all times: no human laws are of any validity, if contrary to this; and such of them as are
valid derive all their force, and all their authority, mediately or immediately, from this
original (1979, p. 41).

In this passage, Blackstone articulates the two claims that constitute the theoretical core
of classical naturalism: 1) there can be no legally valid standards that conflict with the
natural law; and 2) all valid laws derive what force and authority they have from the
natural law. On this view, to paraphrase Augustine, an unjust law is no law at all.

Related to Blackstone’s classical naturalism is the neo-naturalism of John Finnis (1980).

Finnis believes that the naturalism of Aquinas and Blackstone should not be construed as
a conceptual account of the existence conditions for law. According to Finnis (see also Bix,
1996), the classical naturalists were not concerned with giving a conceptual account of
legal validity; rather they were concerned with explaining the moral force of law: “the
principles of natural law explain the obligatory force (in the fullest sense of “obligation”)
of positive laws, even when those laws cannot be deduced from those principles” (Finnis
1980, pp. 23-24). On Finnis’s view of the Overlap Thesis, the essential function of law is
to provide a justification for state coercion. Accordingly, an unjust law can be legally valid,
but cannot provide an adequate justification for use of the state coercive power and is
hence not obligatory in the fullest sense; thus, an unjust law fails to realize the moral
ideals implicit in the concept of law. An unjust law, on this view, is legally binding, but is
not fully law.

Lon Fuller (1964) rejects the idea that there are necessary moral constraints on the
content of law. On Fuller’s view, law is necessarily subject to a procedural morality
consisting of eight principles:
P1: the rules must be expressed in general terms;
P2: the rules must be publicly promulgated;
P3: the rules must be prospective in effect;
P4: the rules must be expressed in understandable terms;
P5: the rules must be consistent with one another;
P6: the rules must not require conduct beyond the powers of the affected parties;
P7: the rules must not be changed so frequently that the subject cannot rely on them; and
P8: the rules must be administered in a manner consistent with their wording.

On Fuller’s view, no system of rules that fails minimally to satisfy these principles of
legality can achieve law’s essential purpose of achieving social order through the use of
rules that guide behavior. A system of rules that fails to satisfy (P2) or (P4), for example,
cannot guide behavior because people will not be able to determine what the rules require.
Accordingly, Fuller concludes that his eight principles are “internal” to law in the sense
that they are built into the existence conditions for law: “A total failure in any one of these
eight directions does not simply result in a bad system of law; it results in something that
is not properly called a legal system at all” (1964, p. 39).

b. Legal Positivism
Opposed to all forms of naturalism is legal positivism, which is roughly constituted by
three theoretical commitments: (i) the Social Fact Thesis, (ii) the Conventionality Thesis,
and (iii) the Separability Thesis. The Social Fact Thesis (which is also known as
the Pedigree Thesis) asserts that it is a necessary truth that legal validity is ultimately a
function of certain kinds of social facts. The Conventionality Thesis emphasizes law’s
conventional nature, claiming that the social facts giving rise to legal validity are
authoritative in virtue of some kind of social convention. The Separability Thesis, at the
most general level, simply denies naturalism’s Overlap Thesis; according to the
Separability Thesis, there is no conceptual overlap between the notions of law and
morality.
i. The Conventionality Thesis
According to the Conventionality Thesis, it is a conceptual truth about law that legal
validity can ultimately be explained in terms of criteria that are authoritative in virtue of
some kind of social convention. Thus, for example, H.L.A. Hart (1996) believes the criteria
of legal validity are contained in a rule of recognition that sets forth rules for creating,
changing, and adjudicating law. On Hart’s view, the rule of recognition is authoritative in
virtue of a convention among officials to regard its criteria as standards that govern their
behavior as officials. While Joseph Raz does not appear to endorse Hart’s view about a
master rule of recognition containing the criteria of validity, he also believes the validity
criteria are authoritative only in virtue of a convention among officials.

ii. The Social Fact Thesis

The Social Fact Thesis asserts that legal validity is a function of certain social facts.
Borrowing heavily from Jeremy Bentham, John Austin (1995) argues that the principal
distinguishing feature of a legal system is the presence of a sovereign who is habitually
obeyed by most people in the society, but not in the habit of obeying any determinate
human superior. On Austin’s view, a rule R is legally valid (that is, is a law) in a society S
if and only if R is commanded by the sovereign in S and is backed up with the threat of a
sanction. The relevant social fact that confers validity, on Austin’s view, is promulgation
by a sovereign willing to impose a sanction for noncompliance.
Hart takes a different view of the Social Fact Thesis. Hart believes that Austin’s theory
accounts, at most, for one kind of rule: primary rules that require or prohibit certain kinds
of behavior. On Hart’s view, Austin overlooked the presence of other primary rules that
confer upon citizens the power to create, modify, and extinguish rights and obligations in
other persons. As Hart points out, the rules governing the creation of contracts and wills
cannot plausibly be characterized as restrictions on freedom that are backed by the threat
of a sanction.
Most importantly, however, Hart argues Austin overlooks the existence of secondary
meta-rules that have as their subject matter the primary rules themselves and distinguish
full-blown legal systems from primitive systems of law:

[Secondary rules] may all be said to be on a different level from the primary rules, for they
are all about such rules; in the sense that while primary rules are concerned with the
actions that individuals must or must not do, these secondary rules are all concerned with
the primary rules themselves. They specify the way in which the primary rules may be
conclusively ascertained, introduced, eliminated, varied, and the fact of their violation
conclusively determined (Hart 1994, p. 92).
Hart distinguishes three types of secondary rules that mark the transition from primitive
forms of law to full-blown legal systems: (1) the rule of recognition, which “specif[ies] some
feature or features possession of which by a suggested rule is taken as a conclusive
affirmative indication that it is a rule of the group to be supported by the social pressure
it exerts” (Hart 1994, p. 92); (2) the rule of change, which enables a society to add, remove,
and modify valid rules; and (3) the rule of adjudication, which provides a mechanism for
determining whether a valid rule has been violated. On Hart’s view, then, every society
with a full-blown legal system necessarily has a rule of recognition that articulates criteria
for legal validity that include provisions for making, changing and adjudicating law. Law
is, to use Hart’s famous phrase, “the union of primary and secondary rules” (Hart 1994,
p. 107).
According to Hart’s view of the Social Fact Thesis, then, a proposition P is legally valid in
a society S if and only if it satisfies the criteria of validity contained in a rule of recognition
that is binding in S. As we have seen, the Conventionality Thesis implies that a rule of
recognition is binding in S only if there is a social convention among officials to treat it as
defining standards of official behavior. Thus, on Hart’s view, “[the] rules of recognition
specifying the criteria of legal validity and its rules of change and adjudication must be
effectively accepted as common public standards of official behaviour by its officials”
(Hart 1994, p. 113).

iii. The Separability Thesis

The final thesis comprising the foundation of legal positivism is the Separability Thesis.
In its most general form, the Separability Thesis asserts that law and morality are
conceptually distinct. This abstract formulation can be interpreted in a number of ways.
For example, Klaus F¸þer (1996) interprets it as making a meta-level claim that the
definition of law must be entirely free of moral notions. This interpretation implies that
any reference to moral considerations in defining the related notions of law, legal validity,
and legal system is inconsistent with the Separability Thesis.

More commonly, the Separability Thesis is interpreted as making only an object-level

claim about the existence conditions for legal validity. As Hart describes it, the
Separability Thesis is no more than the “simple contention that it is in no sense a
necessary truth that laws reproduce or satisfy certain demands of morality, though in fact
they have often done so” (Hart 1994, pp. 181-82). Insofar as the object-level interpretation
of the Separability Thesis denies it is a necessary truth that there are moral constraints on
legal validity, it implies the existence of a possible legal system in which there are no moral
constraints on legal validity.

Though all positivists agree there are possible legal systems without moral constraints on
legal validity, there are conflicting views on whether there are possible legal
systems with such constraints. According to inclusive positivism (also known as
incorporationism and soft positivism), it is possible for a society’s rule of recognition to
incorporate moral constraints on the content of law. Prominent inclusive positivists
include Jules Coleman and Hart, who maintains that “the rule of recognition may
incorporate as criteria of legal validity conformity with moral principles or substantive
values … such as the Sixteenth or Nineteenth Amendments to the United States
Constitution respecting the establishment of religion or abridgements of the right to vote”
(Hart 1994, p. 250).
In contrast, exclusive positivism (also called hard positivism) denies that a legal system
can incorporate moral constraints on legal validity. Exclusive positivists like Raz (1979)
subscribe to the Source Thesis, according to which the existence and content of law can
always be determined by reference to its sources without recourse to moral argument. On
this view, the sources of law include both the circumstances of its promulgation and
relevant interpretative materials, such as court cases involving its application.

c. Ronald Dworkin’s Third Theory

Ronald Dworkin rejects positivism’s Social Fact Thesis on the ground that there are some
legal standards the authority of which cannot be explained in terms of social facts. In
deciding hard cases, for example, judges often invoke moral principles that Dworkin
believes do not derive their legal authority from the social criteria of legality contained in
a rule of recognition (Dworkin 1977, p. 40). Nevertheless, since judges are bound to
consider such principles when relevant, they must be characterized as law. Thus, Dworkin
concludes, “if we treat principles as law we must reject the positivists’ first tenet, that the
law of a community is distinguished from other social standards by some test in the form
of a master rule” (Dworkin 1977, p. 44).
Dworkin believes adjudication is and should be interpretive: “judges should decide hard
cases by interpreting the political structure of their community in the following, perhaps
special way: by trying to find the best justification they can find, in principles of political
morality, for the structure as a whole, from the most profound constitutional rules and
arrangements to the details of, for example, the private law of tort or contract” (Dworkin
1982, p. 165). There are, then, two elements of a successful interpretation. First, since an
interpretation is successful insofar as it justifies the particular practices of a particular
society, the interpretation must fit with those practices in the sense that it coheres with
existing legal materials defining the practices. Second, since an interpretation provides
a moral justification for those practices, it must present them in the best possible moral
light. Thus, Dworkin argues, a judge should strive to interpret a case in roughly the
following way:
A thoughtful judge might establish for himself, for example, a rough “threshold” of fit
which any interpretation of data must meet in order to be “acceptable” on the dimension
of fit, and then suppose that if more than one interpretation of some part of the law meets
this threshold, the choice among these should be made, not through further and more
precise comparisons between the two along that dimension, but by choosing the
interpretation which is “substantively” better, that is, which better promotes the political
ideals he thinks correct (Dworkin 1982, p. 171).

Accordingly, on Dworkin’s view, the legal authority of a binding principle derives from
the contribution it makes to the best moral justification for a society’s legal practices
considered as a whole. Thus, a legal principle maximally contributes to such a justification
if and only if it satisfies two conditions:

1. the principle coheres with existing legal materials; and

2. the principle is the most morally attractive standard that satisfies (1).
The correct legal principle is the one that makes the law the moral best it can be.

In later writings, Dworkin expands the scope of his “constructivist” view beyond
adjudication to encompass the realm of legal theory. Dworkin distinguishes
conversational interpretation from artistic/creative interpretation and argues that the
task of interpreting a social practice is more like artistic interpretation:

The most familiar occasion of interpretation is conversation. We interpret the sounds or

marks another person makes in order to decide what he has said. Artistic interpretation
is yet another: critics interpret poems and plays and paintings in order to defend some
view of their meaning or theme or point. The form of interpretation we are studying-the
interpretation of a social practice-is like artistic interpretation in this way: both aim to
interpret something created by people as an entity distinct from them, rather than what
people say, as in conversational interpretation” (Dworkin 1986, p. 50).

Artistic interpretation, like judicial interpretation, is constrained by the dimensions of fit

and justification: “constructive interpretation is a matter of imposing purpose on an
object or practice in order to make of it the best possible example of the form or genre to
which it is taken to belong” (Dworkin 1986, p. 52).

On Dworkin’s view, the point of any general theory of law is to interpret a very complex
set of related social practices that are “created by people as an entity distinct from them”;
for this reason, Dworkin believes the project of putting together a general theory of law is
inherently constructivist:

General theories of law must be abstract because they aim to interpret the main point and
structure of legal practice, not some particular part or department of it. But for all their
abstraction, they are constructive interpretations: they try to show legal practice as a
whole in its best light, to achieve equilibrium between legal practice as they find it and the
best justification of that practice. So no firm line divides jurisprudence from adjudication
or any other aspect of legal practice (Dworkin 1986, p. 90).

Indeed, so tight is the relation between jurisprudence and adjudication, according to

Dworkin, that jurisprudence is no more than the most general part of adjudication; thus,
Dworkin concludes, “any judge’s opinion is itself a piece of legal philosophy” (Dworkin
1986, p. 90).

Accordingly, Dworkin rejects not only positivism’s Social Fact Thesis, but also what he
takes to be its underlying presuppositions about legal theory. Hart distinguishes two
perspectives from which a set of legal practices can be understood. A legal practice can be
understood from the “internal” point of view of the person who accepts that practice as
providing legitimate guides to conduct, as well as from the “external” point of view of the
observer who wishes to understand the practice but does not accept it as being
authoritative or legitimate.

Hart understands his theory of law to be both descriptive and general in the sense that it
provides an account of fundamental features common to all legal systems-which
presupposes a point of view that is external to all legal systems. For this reason, he regards
his project as “a radically different enterprise from Dworkin’s conception of legal theory
(or ‘jurisprudence’ as he often terms it) as in part evaluative and justificatory and as
‘addressed to a particular legal culture’, which is usually the theorist’s own and in
Dworkin’s case is that of Anglo-American law” (Hart 1994, p. 240).

These remarks show Hart believes Dworkin’s theoretical objectives are fundamentally
different from those of positivism, which, as a theory of analytic jurisprudence, is largely
concerned with conceptual analysis. For his part, Dworkin conceives his work as
conceptual but not in the same sense that Hart regards his work:

We all-at least all lawyers-share a concept of law and of legal right, and we contest
different conceptions of that concept. Positivism defends a particular conception, and I
have tried to defend a competing conception. We disagree about what legal rights are in
much the same way as we philosophers who argue about justice disagree about what
justice is. I concentrate on the details of a particular legal system with which I am
especially familiar, not simply to show that positivism provides a poor account of that
system, but to show that positivism provides a poor conception of the concept of a legal
right (Dworkin 1977, 351-52).

These differences between Hart and Dworkin have led many legal philosophers, most
recently Bix (1996), to suspect that they are not really taking inconsistent positions at all.
Accordingly, there remains an issue as to whether Dworkin’s work should be construed
as falling under the rubric of analytic jurisprudence.