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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.

No one denies that moral principles figure in legal argument and practice. However, the kind of role morality can or must play in law has been a topic of debate not only between positivists and their critics, but also within the positivist camp. The topic was brought into contemporary prominence by Ronald Dworkin, who in The Model of Rules I made the provocative observation that the legality of norms appears to depend sometimes on their substantive (moral) merits, and not just on their pedigree or social source. Ronald Dworkin, The Model of Rules I, in T AKING R IGHTS S ERIOUSLY 14 (1977). The observation was intended by Dworkin as a challenge to the positivism of H.L.A. Hart.

In Fairness versus Welfare, Kaplow and Shavell argue that legal practice and calls for its reform ought to be assessed exclusively by their expected impact on welfare. In particular, they argue that insofar as considerations of fairness are not aspects of an individual's welfare, they have no place to play in the evaluation of the law. In this review essay, I show that this claim is not only inadequately defended in the book, but in fact indefensible. In particular, I argue: (1) whereas the central claim of the book requires a normative argument, all Kaplow and Shavell offer is an empty tautological claim; (2) that in addition they offer an evolutionary argument that is either a non-sequitor or is so strong as to undermine their own thesis; (3) that the arguments they purport to offer work as well to defend fairness as against welfare as they work to defend welfare as against fairness - that in either case they do not work at all; (4) that they offer an inadequate conception of human welfare, one that makes the claim that the law should be evaluated exclusively in the light of its impact on welfare, not merely implausible, but altogether mysterious; and (5) that any more plausible account of welfare that would be adequate to explain why the law ought to be assessed by its impact on welfare is also sufficient to explain why the law ought to be assessed by its impact on fairness.

This chapter pursues a top-down approach to contract law. Markets involve large numbers of discrete transactions. Some of these occur among individuals who come together only for the purpose of exchange. Other transactions are embedded in long-term relationships, both contractual and other. It is suggested that a discrete transaction be viewed as an attempt to forge a contract, as a scheme of ‘local cooperation for mutual advantage’.

Gregory S. Kavka (1947–94) was a prominent and influential figure in contemporary moral and political philosophy. The essays in this volume are concerned with fundamental issues of rational commitment and social justice to which Kavka devoted his work as a philosopher. The essays take Kavka's work as a point of departure and seek to advance the respective debates. The topics include: the relationship between intention and moral action as part of which Kavka's famous 'toxin puzzle' is a focus of discussion, the nature of deterrence, the rationality of morals, contractarian ethics, and the contemporary relevance of Hobbes' political thought. Incorporating important philosophical statements of problems and fresh contributions to the ongoing debate about rational intention this volume will interest not just philosophers but also political scientists and economists.

By what standards ought the immigration policies of nations be assessed? Answering this question requires that we draw several preliminary distinctions. In the first place, immigration is a form of access to political borders. Access, in turn, can take many forms, from travel to temporary residence, to permanent residence, and, ultimately, to citizenship. Let us refer to these as various forms of status. Different countries provide different bundles of resources to individuals depending on their status. Thus we can distinguish between status, the conditions for obtaining that status, and the bundles of resources that status entitles one to. In the first part of this essay, we explore the various forms of access to political borders individuals can obtain, the conditions that must be satisfied in order to obtain them, and the bundles of resources the status makes available. Our empirical study is restricted to eight representative nation-states. Our approach to the normative question is to see whether important aspects of the immigration policies of the nations we consider can be defended as reflecting or consistent with alternative plausible conceptions of justice. So we look first for common elements in these practices and then ask ourselves whether these can be plausibly construed as implementing an appropriate ideal or demand of justice. In other words, before suggesting reform of existing policies, we take the view that the theorist's responsibility is to try first to make the best case for existing practices. The criticisms that stick are those that emerge after a practice has received the most sympathetic understanding and found to fall short.

In Fairness versus Welfare, Kaplow and Shavell argue that legal practice and calls for its reform ought to be assessed exclusively by their expected impact on welfare. In particular, they argue that insofar as considerations of fairness are not aspects of an individual's welfare, they have no place to play in the evaluation of the law. In this review essay, I show that this claim is not only inadequately defended in the book, but in fact indefensible. In particular, I argue: (1) whereas the central claim of the book requires a normative argument, all Kaplow and Shavell offer is an empty tautological claim; (2) that in addition they offer an evolutionary argument that is either a non-sequitor or is so strong as to undermine their own thesis; (3) that the arguments they purport to offer work as well to defend fairness as against welfare as they work to defend welfare as against fairness - that in either case they do not work at all; (4) that they offer an inadequate conception of human welfare, one that makes the claim that the law should be evaluated exclusively in the light of its impact on welfare, not merely implausible, but altogether mysterious; and (5) that any more plausible account of welfare that would be adequate to explain why the law ought to be assessed by its impact on welfare is also sufficient to explain why the law ought to be assessed by its impact on fairness.

This essay has two ambitions. First, it presents a defense of the market that is both interesting and plausible. Second, it attributes this view of the market to the economist Frank Knight. Whether the view the essay attributes to Knight is original with him, I simply cannot say. The difficulty in attributing positions to Knight is that, over the course of his long and distinguished career, he appears to have endorsed and rejected all manner of conventional economic wisdom. His views were rarely, if ever, in equilibrium. It is not surprising that economists as diverse as three recent Nobel laureates, George Stigler, James Buchanan, and Milton Friedman, have found in Knight inspiration for their own work. So it is not that one is likely to make the mistake of attributing to Knight a view he did not hold that makes this form of analytic speculation perilous. Quite the contrary. The risk is that no ascription may be perilous enough to warrant the effort. Consequently, I take the primary burden of this exercise to be outlining and making plausible what I will call "the consensus theory of the market." My view, moreover, is that this is the view of the market the reflective Frank Knight came to late in his career. The essay proceeds by first setting out the conventional view of the market. Then it shows how this view of the market gives rise to a certain research program-what I call the "market paradigm."' In the market paradigm, the perfectly competitive market is taken as a logical and normative point of departure for the analysis and justification of nonmarket, usually legal, political, and moral institutions. In this view, law, politics, and morality are to be justified as solutions to the general problem of market failure. When competition fails, collective, cooperate action is necessary. Political and moral institutions are collective goods representing schemes of cooperation rational if and when markets fail. Cooperation

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

EVERY theory about the nature or essence of law purports to provide a standard, usually in the form of a statement of necessary and sufficient conditions, for determining which of a community's norms constitute its law. For example, the naive version of legal realism maintains that the law of a community is constituted by the official pronouncements of judges. For the early positivists like Austin, law consists in the commands of a sovereign, properly so-called. For substantive natural law theory, in every conceivable legal system, being a true principle of morality is a necessary condition of legality for at least some norms. Legal positivism of the sort associated with H. L. A. Hart maintains that, in every community where law exists, there exists a standard that determines which of the community's norms are legal ones. Following Hart, this standard is usually referred to as a rule of recognition. If all that positivism meant by a rule of recognition were "the standard in every community by which a community's legal norms were made determinate," every theory of law would be reducible to one or another version of positivism. Which form of positivism each would take would depend on the particular substantive conditions of legality that each theory set out. Legal positivism would be true analytically, since it would be impossible to conceive of a theory of law that did not satisfy the minimal conditions for a rule of recognition. Unfortunately, the sort of truth legal positivism would then reveal would be an uninteresting one. In order to distinguish a rule of recognition in the positivist sense from other statements of the conditions of legality, and therefore to distinguish positivism from alternative jurisprudential theses, additional constraints must be placed on the rule of recognition. Candidates for these constraints

Over the last several decades economists and lawyers trained in or enamored of economics have sought to explore the extent to which virtually all areas of the law could be understood as the institutional embodiment of the principle of economic efficiency. This research program has come to be thought of as a separate academic discipline: namely, law and economics. The work in law and economics has had both analytic and normative dimensions. The analytic work has been devoted to demonstrating that large areas of law can be explained or made intelligible by seeing them as concerned not so much with matters ofjustice or morality as with the efficient allocation of resources. The normative work in the field is concerned to give legislators and judges a framework for legislating and adjudicating cases so as to promote further the goal of efficiency.1

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.