Version: v1, Published online: 2001
Retrieved April 22, 2021, from https://www.rep.routledge.com/articles/thematic/legal-positivism-inclusive-versus-exclusive/v-1
3. Inclusive and exclusive positivism
In response to Dworkin’s critique of Hart, defenders of legal positivism have employed a wide variety of strategies. Most, however, have focused on Dworkin’s construal of the separation thesis, arguing that Dworkin fails to distinguish two very different claims:
As a matter of conceptual necessity, the legal validity of a norm can never be a function of its consistency with moral principles or values.
It is conceptually possible, but in no way necessary, that the legal validity of a norm is in some way a function of its consistency with moral principles or values.
According to proposition A, which we might call the strong separation thesis, legality and morality are necessarily separate from one another; moral argument can never be used to determine what the law is, but only what it ought to be. According to proposition B, which we might call the separability thesis, legality and morality are only separable, not necessarily separate. The two can be brought together if the right conditions prevail, if, e.g., a society’s rule of recognition includes conformity with a moral principle like fairness as a condition of legal validity (see Justice §5). Inclusive positivists reject the strong separation thesis but fully endorse the separability thesis. In response to Dworkin’s claim that sometimes moral arguments figure in attempts to determine binding law, defenders of inclusive positivism reply: Yes, but this is not necessarily so. Although there is nothing in the nature of law (as characterized by the social and separability theses) requiring the use of moral arguments to determine legality, there is nothing which prohibits their use either – as Hart himself recognized. Hart was clear that the rule of recognition can be as austere as ‘Whatever the Queen in Parliament enacts is law’, a rule which separates legality from any and all moral conditions. But he was equally clear that ‘[i]n some systems [of law], as in the United States, the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values’ (Hart  1994: 204). Such criteria form a rule of recognition in which the separable properties of legality and morality are brought together, the one being a condition of the other.
So inclusive positivists reject the strong separation thesis and Dworkin’s assertion that it reflects the theoretical commitments of legal positivism. Other legal positivists, most notably Joseph Raz, agree with Dworkin on the theoretical commitments of legal positivism and set out to defend their theory – exclusive positivism – both against Dworkin’s critique and against the claim of their inclusive counterparts that the separability thesis provides a sufficient account of positivism’s theoretical commitments. In response to Dworkin, exclusive positivists accept that many principles do indeed figure as binding law, but they maintain that the status of those principles is perfectly explicable in terms of morally neutral criteria of validity which make no mention of moral worth. Many legal principles come into existence through enactment in the preambles to statutes and constitutions (Raz 1972). A principle can also ‘crystallize’ into law when – and because – it is applied by judges in a sufficient number of cases. Yet another exclusivist strategy is to distinguish between (a) moral criteria for legal validity, and (b) legal rules which empower judges to appeal to non-legal norms – in this instance, morality – to invalidate what are otherwise valid laws. The difference is as follows. According to an inclusive positivist, it is perfectly possible that the due process clause (fairness) of the USA’s constitution establishes a moral condition for legal validity. If it does, then any statute or judicial decision that violates the principles of fairness is actually not valid law in the USA. Since exclusive positivists are barred from allowing a moral principle to serve in this way as a criterion of legal validity, they must construct an alternative explanation of the due process clause. According to the exclusive positivist, this clause does not incorporate the moral principle of fairness into the law as a condition of validity; rather, it provides judges with a directed power to invalidate a statute or precedent which, antecedent to the exercise of this power in a legal case, is perfectly valid. The difference between the two accounts is analogous to the difference between a void and a voidable contract. The former is of no force and effect; the latter can become so, but only if the innocent party exercises their legal power to get the contract voided. Until such time as the power to void is exercised, a voidable contract is binding. According to inclusive positivism, conflict with the due process clause might mean that the statute already is invalid (void). According to exclusive positivism, this conflict means only that the statute is ‘subject to invalidation (voidable)’ – which is the only interpretation consistent with the separation thesis (Raz 1980: appendix).
So defenders of exclusive positivism resolutely insist on the strong separation thesis, that the moral worthiness of a normative standard can never figure among the conditions of its status as a legally valid norm. In defence of this claim a number of arguments have been put forward. The most powerful and influential is Joseph Raz’s argument that the separability thesis undermines the law’s capacity to serve as a practical authority.
Waluchow, Wilfrid. Inclusive and exclusive positivism. Legal positivism, inclusive versus exclusive, 2001, doi:10.4324/9780415249126-T064-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/thematic/legal-positivism-inclusive-versus-exclusive/v-1/sections/inclusive-and-exclusive-positivism.
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