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In this essay, I characterize the original intervention that became Inclusive Legal Positivism, defend it against a range of powerful objections, explain its contribution to jurisprudence, and display its limitations and its modest jurisprudential significance. I also show how in its original formulations ILP depends on three notions that are either mistaken or inessential to law: the separability thesis, the rule of recognition, and the idea of criteria of legality. The first is false and is in 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 in a way that relies on none of these: ILP is the claim that necessarily social facts determine the determinants of legal content. I show that ILP so conceived leaves the central debates in law largely untouched. I suggest how the most fundamental of these—the question of the normativity of law—at least can be usefully addressed. The essay closes by suggesting that even though one can distinguish the social from the normative dimensions of law, a theory of the nature of law is necessarily an account of the relationship between the two: It is a theory either of the difference that certain distinctive social facts make in normative space, or it is an account of the distinctive normative difference that law makes, and the social and other facts that are necessary to explain that difference. One can distinguish between but one cannot separate the social from the normative aspects of legality.

In emphasizing the importance of the separability thesis, legal philosophers have inadequately appreciated other philosophically important ways in which law and morality are or might be connected with one another. In this article, I argue that the separability thesis cannot shoulder the philosophical burdens that it has been asked to bear. I then turn to two issues of greater importance to jurisprudence. These are ‘the moral semantics of law’ and ‘the normativity of theory construction in jurisprudence’. The moral semantics claim is that legal content is best understood as moral directives about what is to be done and who is to decide what is to be done. The problem is that legal positivists typically hold that only social facts contribute to the content of law, and it is hard to see how a positivist can hold both the social-facts claim and the moral-semantics claim. I argue that not only are the two claims consistent with one another, but that legal positivists must hold some version of the moral semantics claim if they are to make sense of the claim that legal reasons purport to be content-independent moral reasons for acting. In Section 3 of the article, I take up the question of whether theory construction in jurisprudence is normative or descriptive. This is hard to do in part because so little attention has been paid to correctly formulating the issue. I suggest a demanding test for descriptivism; namely, that an adequate analysis of law can be provided entirely in terms of its formal features. I then defend this claim against three arguments designed to show because governance by law is necessarily desirable or valuable that, we cannot characterize law without making reference to those values or to other material features of law. This constitutes a limited but powerful defence of descriptive jurisprudence.

H.L.A. Hart's The Concept of Law is the most important and influential book in the legal positivist tradition. Though its importance is undisputed, there is a good deal less consensus regarding its core commitments, both methodological and substantive. With the exception of an occasional essay, Hart neither further developed nor revised his position beyond the argument of the book. The burden of shaping the prevailing understanding of his views, therefore, has fallen to others: notably, Joseph Raz among positivists, and Ronald Dworkin among positivism's critics. Dworkin, in particular, has framed, then reframed, the conventional understanding, not only of Hart's positivism, but of the terms of the debate between positivists and him. While standing on the sidelines, Hart witnessed the unfolding of not only a lively debate between positivists and Dworkin, but an equally intense one among positivists as to positivism's (and his) core claims. The most important debate has been between so-called inclusive and exclusive positivists: a debate as much about Hart's legacy as about the proper interpretation of legal positivism.

There is a close but largely unexplored connection between law and economics and cognitive psychology. Law and economics applies economic models, modes of analysis, and argument to legal problems. Economic theory can be applied to legal problems for predictive, explanatory, or evaluative purposes. In explaining or assessing human action, economic theory presupposes a largely unarticulated account of rational, intentional action. Philosophers typically analyze intentional action in terms of desires and beliefs. I intend to perform some action because I believe that it will (is likely to) produce an outcome that I desire. This standard “belief-desire” model of action invokes what philosophers of psychology and action theorists aptly refer to as a “folk psychology.”

An extraordinary collection of the finest essays in the core areas of legal philosophy, Readings in Philosophy of Law is a perfect introduction to the breadth of issues covered in the philosophy of law. The essays are all classic papers chosen as much for their clarity of thought and comprehensiveness as for their distinctiveness and importance to the subject matters of legal philosophy. This collection is ideal for the professional as well as the student, as it brings together classic essays that are not otherwise available in one volume. The reader sees each author's thoughts and arguments unfold naturally within the context of other important works. For breadth of contributions and intellectual rigor, Readings in Philosophy of Law is unrivalled.

Two marks of a mature field of inquiry are that its central problems are well-formulated and that its conventional wisdom is sound. Even in the most mature fields, however, the conventional wisdom can sometimes be misleading and the central problems poorly cast. Unfortunately, this is the state of affairs in analytic jurisprudence. Progress can be made only if much of the conventional wisdom is displaced and its central questions are reframed.

I have revised my thinking about corrective justice and its relationship to tort law since the publication in 1992 of Risks and Wrongs. In this epilogue to the most recent edition of Risks and Wrongs I discuss the development of my thinking on the relationship of justice to tort law from the time of my PhD dissertation to the present. This epilogue details the development of my views and how they have been affected by the critical discussion of my work over the years.

This chapter considers the differences between inclusive and exclusive legal positivism, and distinguishes the chapter’s version of inclusive legal positivism from other accounts. It argues that other inclusive legal positivists have not always grasped, as well as they might, just what it is about the chapter’s thesis that is objectionable from the exclusive legal positivist point of view.

This chapter responds to the challenge that the two-way relationship between practice and principle is objectionably circular. It presents some very provisional remarks about the relationship of corrective justice to fairness and of fairness to a certain liberal idea of the person as the author of her own life.

This chapter addresses the full range of arguments designed to show that the philosophical investigation of law and of the concepts that figure in it must be an activity of moral or political philosophy. The standard formulations of the debate between so-called descriptive and normative jurisprudence are considered misleading and unhelpful. The task of finding a satisfactory formulation of the dispute occupies much of the chapter; a good deal of the rest is devoted to resolving the dispute.

Introduction 1. Two Views of the Nature of The Theory of Law: A Partial Comparison 2. Herbert Hart and the Semantic Sting 3. Hart's Semantics 4. Incorporationism, Conventionality and the Practical Difference Thesis 5. Hart's Way Out 6. Legal Conventionalism 7. The Model of Social Facts 8. Law's Claim of Legitimate Authority 9. Hart's Methodological Positivism 10. Realism, Hart Positivism, and Conceptual Analysis 12. Normative (or Ethical) Positivism Index

What is the relationship between morality and rationality? The answer to this question depends, of course, on how we characterize "rationality" and "morality." We can begin with the definition of rationality found in contemporary microeconomics: rationality is utility maximization.' The rational actor seeks to maximize his net, expected, utility. Defining rationality in this way enables us to give a simple and minimal definition of morality: morality is constrained utility maximization.2 The moral actor sometimes acts so as to constrain his utility-maximizing behavior. Given these definitions, rationality and morality are incompatible. The purely rational individual, at least sometimes, must act immorally; the purely moral individual, at least sometimes, must act irrationally. Recent work in the theory of rational choice, however, purports to demonstrate not only that rationality and morality are compatible but, moreover, that moral principles are derivable from rationality, once that concept is correctly analyzed. It is common to distinguish between the substantive and motivational aspects of a moral theory. The substantive component specifies the content of the principles of morality; the motivational component explains why a rational person would comply with the principles specified by the sub

Instead of being embarrassed and uneasy about the implications of the separation thesis, positivists should welcome the fact that they cannot account for the obligatoriness of law. The rule of recognition is only a social rule and introduces no grounds for obligation.