Thread by @scottjshapiro

I make jokes about inclusive legal positivism, so an explainer about what it is and why it's ridiculous

Thread /1

Legal positivism is the view that the law is ultimately a matter of social fact. Law is, at bottom, a social construction. In its modern form, the social facts that ultimately make rules *legal* rules is the practice among officials to treat those rules as law. /2

HLA Hart, the great legal positivist of postwar Anglophone jurisprudence called this practice the "rule of recognition" (RoR). The RoR identifies those properties that rules must possess in order to be law. The RoR in the US, for example, requires statutes /3

to be passed by Congress and signed by the President (it's more complex, obv). So what makes Congressional statutes law is not that these statutes are morally right or good. It's that they bear the properties set out in the US RoR. The RoR determines what counts as law /4

simply because legal officials accept the RoR. The RoR may pick out morally terrible rules. What matters is officials in that system do. Here's where the debate between exclusive and inclusive LP comes in. The RoR sets out the properties that make a rule law. /5

But can it set out any properties whatsoever? Can the RoR set out moral criteria? What if legal officials in some system take moral rules that have not been enacted by any institution as law? Would moral rules be legal rules then? /6

ILP's answer yes. After all, the law is anything that bears the properties set out in the RoR and a RoR is determined by official practice. Moral rules would count as law if officials act as though they are already law. These rules would ultimately be grounded in social fact. /7

ELP's disagree and maintain that moral properties can never determine legal rules. The only properties that the RoR can set out are social in nature (whether they were enacted by a legislature, decided by a court, approved by an agency, ...) So the ELP would deny that /8

moral rules can ever be law just because they are morally right or good. They must have some social pedigree. So that's roughly debate between ILP and ELP: whether morality can ever be a condition on legality. So why do I think that ILP is ridiculous? /9

The whole idea behind Hart's RoR is that legal systems need a way of determining what is authoritative and what is not. That is what the RoR does: it says "Yes, I know you think that X is a moral rule, but the law has not designated it as such." /10

Hart called this the "problem of uncertainty"--how communities can figure out what they ought to do. Morality is complex and contentious. The RoR solves this problem by designated rules as authoritative for the community. /11

Now, I ask you: How tf is a RoR supposed to solve the problem of uncertainty by telling you that you should do what you morally ought to do? We already knew that! A RoR that sets out morality as a criteria of legality doesn't do anything. /12

It simply restates the problem of uncertainty as the solution. It's like asking someone for advice and them answering: "Do the right thing!" Thanks a lot. I knew that already. So be smart. Do the right thing. Be an exclusive legal positivist.