Legal positivism, inclusive versus exclusive

References and further reading

	Aquinas, Thomas (1266–73) Summa Theologica, various editions. (Classic natural law text.)
	Austin, J. (1832) The Province of Jurisprudence Determined, London: Weidenfeld & Nicholson, 1954. (Classic ‘command theory’ version of legal positivism.)
	Coleman, J. (1982) ‘Negative and Positive Positivism’, Journal of Legal Studies 11: 139. (Coleman’s first reply to Dworkin’s critique of Hart’s legal positivism.)
	Coleman, J. (1996) ‘Authority and Reason’, in R. George (ed.), The Autonomy of Law, Oxford: Oxford University Press. (Coleman on Raz’s authority argument.)
	Coleman, J. (1998) ‘Incorporationism, Conventionality and the Practical Difference Thesis’, Legal Theory 4: 381. (Coleman’s response to Scott Shapiro’s claim that inclusive positivism violates legal postivism’s commitment to the practical difference thesis.)
	Coleman, J. (2001) The Practice of Principle, Oxford: Oxford University Press. (An elaboration of earlier arguments for inclusive positivism, with an attempt to ground them in a version of philosophical pragmatism.)
	Dworkin, R.M. (1978) Taking Rights Seriously, London: Duckworth. (A set of essays including Dworkin’s original critique of Hart’s legal positivism together with a thumbnail sketch of Dworkin’s alternative and a ‘Reply to Critics’.)
	Dworkin, R.M. (1986) Law’s Empire, Cambridge, MA: Harvard University Press. (Dworkin’s fully developed alternative to legal positivism, ‘law as integrity’.)
	Green, L. (1988) The Authority of the State, Oxford: Oxford University Press. (An excellent discussion of authority in the context of legal and political philosophy, with a defence of exclusive positivism.)
	Green, L. (1996) ‘The Concept of Law Revisited’, Michigan Law Review 94: 1687. (A critical discussion of Hart’s Postscript to the second edition of The Concept of Law, advancing the thesis that Hart’s theoretical commitments should have led him away from inclusive and towards exclusive positivism.)
	Hart, H.L.A. (1958) ‘Positivism and the Separation of Law and Morals’, Harvard Law Review 71: 593. (Hart’s early thoughts on legal positivism and the separability thesis).
	Hart, H.L.A. (1961) The Concept of Law, Oxford: Oxford University Press, 1994. (The twentieth century’s most powerful and influential statement of legal positivism, with – in the 1994 edition – a posthumous Postscript containing Hart’s final response to Dworkin’s challenge and an expression of his commitment to inclusive positivism.)
	Hart, H.L.A. (1982) Essays on Bentham: Jurisprudence and Political Theory, Oxford: Oxford University Press. (Essays that include Hart’s reactions to Raz’s account of the authority of law and to Dworkin’s early critique of legal positivism.)
	Hart, H.L.A. (1983) Essays on Jurisprudence and Philosophy, Oxford: Oxford University Press. (Essays that include further discussions of Dworkin, especially ‘American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream’.)
	Himma, K. (2000) ‘H.L.A. Hart and the Practical Difference Thesis’, Legal Theory 6: 1. (Critique of Scott Shapiro’s argument that inclusive positivism violates legal positivism’s commitment to the practical difference thesis.)
	Kramer, M. (1999) In Defense of Legal Positivism: Law Without Trimmings, Oxford: Oxford University Press. (A sustained defence of legal positivism and inclusive positivism.)
	Kramer, M. (2000) ‘How Moral Principles Can Enter Into the Law’, Legal Theory 6: 83. (A defence of inclusive positivism against Scott Shapiro’s argument that inclusive positivism violates legal positivism’s commitment to the practical difference thesis.)
	Leiter, B. (1998) ‘Realism, Hard Positivism and Conceptual Analysis’, Legal Theory 4: 533. (A defence of exclusive legal positivism and a vigorous critique of Coleman’s arguments.)
	Lyons, D. (1977) ‘Principles, Positivism and Legal Theory’, Yale Law Journal 87: 415. (An early discussion of Dworkin’s claim that legal positivism lacks the theoretical resources to account for legal principles; among the first to urge that Dworkin’s critique was based on the unwarranted assumption that Hart is committed to what became known as exclusive legal positivism.)
	Mackie, J. (1977) ‘The Third Theory of Law’, Philosophy and Public Affairs 7: 3. (Critical discussion of Dworkin’s early theory of law and of his critique of Hart; among the first to urge that Dworkin’s critique was based on the unwarranted assumption that Hart is committed to what became known as exclusive legal positivism.)
	Marmor, A. (1992) Interpretation and Legal Theory, Oxford: Oxford University Press. (A defence of exclusive positivism that includes an analysis of the theory of legal interpretation upon which Dworkin builds his theory of law as integrity.)
	Raz, J. (1972) ‘Legal Principles and the Limits of Law’, Yale Law Journal 81: 823. (An early critique of Dworkin’s claim that Hart’s legal positivism fails to accommodate legal principles.)
	Raz, J. (1979) The Authority of Law, Oxford: Oxford University Press. (A collection that includes a number of influential essays on the theoretical commitments of legal positivism and on the nature of legal authority.)
	Raz, J. (1980) The Concept of a Legal System, Oxford: Oxford University Press, 2nd edn. (Raz’s first book with a later appendix that contains an explanation, from the point of view of exclusive positivism, of the role of moral principles in arguments concerning legal validity.)
	Raz, J. (1985a) ‘Authority and Justification’, Philosophy and Public Affairs 14: 3. (A further development of Raz’s theory of authority and his argument that only exclusive positivism is compatible with legal authority.)
	Raz, J. (1985b) ‘Authority, Law and Morality’, The Monist 68: 295. (A further development of Raz’s theory of authority and his argument that only exclusive positivism is compatible with legal authority.)
	Shapiro, S. (1998a) ‘On Hart’s Way Out’, Legal Theory 4: 469. (A critical discussion of Hart’s inclusive positivism and a defence of the claim that inclusive positivism robs law of its capacity to make a practical difference in deliberations about our reasons for action.)
	Shapiro, S. (1998b) ‘The Difference that Rules Make’, in Brian Bix (ed.), Analyzing Law, Oxford: Oxford University Press. (A further discussion of inclusive positivism and the practical difference thesis.)
	Shiner, R. (1992) Norm and Nature: The Movements of Legal Thought, Oxford: Oxford University Press. (An argument that the conflicts between legal positivism and natural law theory or ‘anti-positivism’ are irresolvable, with detailed discussions of exclusive and inclusive positivism and Dworkin’s theory of law as integrity.)
	Soper, E.P. (1977) ‘Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute’, Michigan Law Review 75: 473. (One of the earliest essays to urge that Dworkin’s critique of Hart is based on the unwarranted assumption that Hart is committed to what became known as exclusive legal positivism.)
	Waluchow, W.J. (1985) ‘Herculean Positivism’, Oxford Journal of Legal Studies 5: 41. (A defence of a Hartian version of inclusive legal positivism in response to Dworkin’s challenge.)
	Waluchow, W.J. (1989) ‘The Weak Social Thesis’, Oxford Journal of Legal Studies 9: 23. (A defence of inclusive positivism and a critique of Raz’s arguments for exclusive positivism – particularly Raz’s argument that only exclusive positivism is compatible with the law’s claim to authority.)
	Waluchow, W.J. (1990) ‘Charter Challenges: A Test Case for Theories of Law’, Osgoode Hall Law Journal 29: 183. (An argument that inclusive positivism provides the best theoretical account to challenges to legal validity based on an appeal to moral principles.)
	Waluchow, W.J. (1994) Inclusive Legal Positivism, Oxford: Oxford University Press. (The first book-length defence of inclusive positivism against Dworkin’s challenge and Raz’s exclusive positivism.)
	Waluchow, W.J. (2000) ‘Authority and the Practical Difference Thesis: A Defense of Inclusive Legal Positivism’, Legal Theory 6: 45. (A reply to various critics of Inclusive Legal Positivism and to Scott Shapiro’s argument that inclusive positivism violates legal positivism’s commitment to the practical difference thesis.)