Version: v1, Published online: 2001
Retrieved April 22, 2021, from https://www.rep.routledge.com/articles/thematic/legal-positivism-inclusive-versus-exclusive/v-1
5. The practical difference thesis
Although Raz’s authority argument remains the most powerful challenge to inclusive legal positivism, a more recent challenge by Scott Shapiro has led to further divisions within the inclusive camp. Shapiro argues that inclusive positivism is inconsistent with the ‘practical difference thesis’, i.e., the claim that ‘in order to be law, authoritative pronouncements must in principle be capable of making a practical difference: a difference … in the structure or content of deliberation and action’ (Coleman 1998: 383). Consider a rule of recognition which cites conformity with some moral principle as a condition of the validity of a legal rule. We cannot, Shapiro argues, be guided by the latter rule in the way in which authoritative directives are supposed to guide us. Owing to the fact that we must consult moral principles, i.e., the first-order reasons the rule was meant to replace, the rule cannot guide us. It can provide neither motivational nor epistemic guidance and cannot, therefore, make a practical difference (Shapiro 1998a, 1998b). This is true, Shapiro argues, whether conformity with moral principle is taken to be a necessary or a sufficient condition for legal validity. In response to Shapiro’s argument, inclusive positivists have declared their allegiance to one or the other of the two possibilities contemplated by Shapiro, thus introducing a further division among defenders of legal positivism. According to Jules Coleman, only the ‘sufficiency’ version of inclusive positivism is capable of parrying Dworkin’s original claim that principles are sometimes treated as law if – and because – they express ideals of justice, fairness or due process (Coleman 1998). Kramer and Waluchow disagree, arguing that the sufficiency version in any sweeping form is untenable and that the ‘necessity’ version is more than capable of meeting Dworkin’s challenge (Kramer 2000; Waluchow 2000). Where these ongoing debates will ultimately lead is, at this stage, an open question. But wherever they lead, the result is likely to be a far better understanding of the social and separability theses than had been attained before Dworkin prompted positivists to consider more deeply their own theoretical commitments.
Waluchow, Wilfrid. The practical difference thesis. 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/the-practical-difference-thesis.
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