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S C OT T J . S HAP IRO L aw, M o ral it y , an d t h e Gu i d an ce o f C o n d u ct

LAW, MORALITY, AND THEGUIDANCE OF CONDUCT

Scott J. Shapiro*

Yeshiva University

Legal positivism is generally characterized by its commitment to two theses

one negative, the other positive.1

The negative th esis, usually refer red toas the Separability Thesis, denies an y necessar y con nection between

morality and legality. Legal positivists do not require that a norm possess

any desirable, or lack any und esirable, mora l attributes in ord er to count as

law.

Separabi li ty Thesis:There is some possible legal system where th e legality of a n orm

does not depend on any of its moral properties.

The positive commitment , sometimes kno wn as the Social Fact Thesis,

holds that the existence of legal systems and legal rules are ultimately

determined by certain fa cts abo ut social groups.

Social Fact Thesis:All legal facts are ultimately determined by social facts.

The very label legal positivism reflects these core commitments. Legal

positivism is the doctrine th at recognizes positivelaw as distinct from n atura l

law, such tha t a legal rule ma y exist even though it is inconsistent with the

dema nds of morality. Moreover, the th eor y treats the law as someth ing th at

must be positedthrough some social act or activity, either by enactment,

decision, or practice.

Although these theses are hardly precise, they do possess sufficient con-

tent to distinguish legal positivism from certain other theories. For exam-

ple, legal positivism so cha racterized is inconsistent with any account tha t

req uires con sistency with morality to be a cond ition o f legality in every legal

system. Natural law theories, such as those traditionally a ssociated with

Aq uinas or Blackston e, would thus violate the Separa bility Thesis.

It is also clear that legal positivism is inconsistent with any theory that

127

Legal Theory, 6 (2000), 127170. Prin ted in t he U nited States of America

Copyright Cambridge University Press 13523252/00 $9.50

*Associate P rofessor of La w, Benjamin N. Card ozo Scho ol of Law. I would like to tha nk KenHimma, Matthew Kramer, and Wil Waluchow for their very thoughtful responses to theargum ents set out in Scott J. Shapiro, On HartsWayOut, 4 LEGAL THEORY 469 (1998). As usual,tha nks are d ue to Jules Co leman an d P eter H ilal for their wise counsel.

1. See, e.g., Jules Coleman, Negati ve and Positi ve Positi vi sm, J. LEGAL STU D . 139 (1982), re-printed in Jules L. Coleman, MARKETS, MORALS AND THE LAW 3 ( 1988).


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affirms the existence of legal rules in the absence of some underwriting

social facts. Consider, fo r example, theories that claim that the Common

Law exists independ ently of judicial practice. To recognize as law this

brooding omnipresence in the sky,2

as Holmes mockingly referred to it,would violate the Social Fact Thesis.

In recent discussions, many have wondered whether legal positivism can

permit mora l appropriateness to b e a possible cond ition of legality. Let us

say that in some lega l system judges took themselves to be legally obligated

to look to morality in order to decide some or all cases that came before

them. Could a legal positivist accept th at moral rules were also lega l rules of

tha t system, even tho ugh no official bod y had posited th em? Would such a

practice of referring to mo rality be eno ugh to satisfy the Social Fact Thesis?

This issue came to the fore in th e wake of Dworkins famo us critique ofHart.3 Dworkin had argued tha t, in Anglo-American legal systems, judges

are legally obligated to look to mora lity in ord er to d ecide certa in cases tha t

are brough t before th em. If legal positivism denied th at mora lity could play

a role in the determination of legality, then lega l positivism would be unable

to a ccoun t for the existence of large parts of Anglo-American law. Dworkin

believed th at lega l positivism could not permit morality to be utilized in th is

fashion. H ence, he con cluded tha t legal positivism was fatally flawed.

Many legal positivists sough t to deflect Dworkins attack by arguing tha t,

even if such a judicial practice did exist, its existence would count a s a socialfact sufficient to groun d the existence of law. Jules Coleman, for example,

argued th at the Social Fact Thesis should be understood as claiming that the

possibility of law depen ds on the existence of a convention a mong judges to

recognize certain rules that bear certain characteristics as binding.4 The

Social Fact Thesis did not req uire that every legal rule ha ve a socia l sourceit

merely required that th e rule tha t set out th e criteria of legality be a social

rule. Legal positivisms commitment to social facts could be satisfied, in other

words, merely by the existence of wha t H art termed a rule of recognition .

Coleman ha s since called th is the Convent ionality Thesis.5

Conventional i ty Thesis:Every legal system contains a conventional rule that im-

poses a duty on courts to evaluate conduct in light of rules that bear certain

characteristics.

By interpreting the Social Fact Thesis in terms of the Conventionality

Thesis, Coleman sought to establish the viability of what has been called

inclusive legal positivism.

2. South ern Pa c. Co . v. Jensen, 244 U .S. 205, 222 (1917).3. SeeRonald Dworkin, TheModel of Rules I, in TAKING RIGHTS SERIOUSLY 14 (1977). For an

extensive discussion of the Hart/Dworkin debate, see Scott J. Shapiro, On Harts Way Out, 4LEGAL THEORY 469, 47789 ( 1998).

4. Jules Coleman, Negative and Positi vePositivi sm, supranote 1.5. See Jules Coleman, Incorporati oni sm, Conventi onali ty, and the Practical Di fference Thesis, 4

LEGAL THEORY 381 (1998).

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Inclusive Legal Positi vi sm:There is some possible lega l system where the lega lity of

a norm does depend on some of its moral properties.

If legal positivisms commitment to social facts were cashed out by the

Convention ality Thesis, then there would be no bar to trea ting mo rality as

a possible condition of legality. As lon g as the moral test of legality were set

out in a socia l rule, th e Social Fact Thesis would be satisfied.

In the Postscript to The Concept of Law, Ha rt o pted for th is solution to

Dworkins challenge.6 Hart agreed with Dworkin that judges are often

legally obligated to apply moral principles tha t lack social sources, an d tha t

when judges act on them, they are applying existing law. However, Hart

believed that such a position was consistent with lega l positivism, fo r he saw

no reason why the rule of recognition could not validate a norm based on

its moral properties. Legal positivists, according to Hart, claim only that a

rule of recognition neednot validate a no rm based on its moral conten t, no t

that it couldnot. The connection with social facts is established simply by

requiring the rule of recognition to be a conventional rule.

In a recent article in this Journal, I argued that interpreting the Social

Fact Thesis in terms of the Conventiona lity Thesis is insufficient to establish

the viability of inclusive legal positivism and hence to save H art from

Dworkins critique.7 The Conventiona lity Thesis, coupled with inclusive

legal positivism, turn s out to be inconsistent with anoth er core commitment

of Ha rts positivism, which might be called the Practical Difference

Thesis.

Practical Di fference Thesis:Legal rules must in principle be capable of securing

conform ity by making a difference to an a gents practical reasoning.

As I argued , a n inclusive legal positivist canno t believe th at in every legal

system th e rule of recognition is a social rule and at thesame timethat legal

rules must in principle be capable of making pra ctical differences.

The a rgumen t I offered did n ot d emon strate tha t inclusive legal positiv-

ism is incoherent, nor was it meant to. It simply purported to show that

certain versions of inclusive legal positivism are incoherent, namely, those

that also embrace the Conventionality and Practical Difference Theses. It

should be noted that not every legal positivist subscribes to both of these

theses. Joseph Raz, for example, rejects the Conventionality Thesis,8 al-

though he accepts the Practical Difference Thesis. Jules Coleman accepts

the Co nventiona lity Thesis, but d enies the Practica l Difference Thesis. The

argument I o ffered, therefore, does not affect Coleman s version of inclu-

6. SeeH.L.A. Ha rt, TH E CONCEPTOF LAW 249 (P enelope A. Bullock &Joseph Ra z eds., 2d ed .1994).

7. SeeShapiro, suprano te 3.8. SeeJoseph Raz, THE CONCEPT OF A LEGAL SYSTEM, 200 (2d ed. 1980). Needless to say, Raz

also rejects inclusive legal positivism.

Law, Morality, and the Guidance of Conduct 129


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sive legal positivism given that he does not accept every member of the

inconsistent trio.

Un fortunately for Ha rt, he did hold all three th eses. He believed that

every legal system had a social rule of recognition, that such a rule ofrecognition can make morality a condition o f legality, an d that legal rules

must be capable of making practical difference. Consequently, I argued,

Hart must give up one of these claims. Because the Conventionality and

Practical Difference Theses are more central to h is theo ry of law, I argued

tha t H art should aband on inclusive legal positivism.

Several inclusive legal positivists have responded to th is argumen t.9 Some

have argued that I h ave misinterpreted H art and attributed to h im theses

he d id not hold . Others have claimed that I have interpreted H art cor rectly,

but the version of inclusive legal positivism held by Ha rt an d a ttacked by meis no t th e only form of inclusive legal positivism, a nd , ind eed, is a particu-

larly implausible one. They claim tha t o ther arguments I presented fail to

impugn more plausible forms of th e theor y. Finally, some have argued tha t

even if I h ave interpreted H art correctly, the arguments I o ffered are no t

sound.

In this paper, I consider these responses. Although I am not ultimately

persuaded by their replies, I do think that the concerns they express are

important ones and ought to be addressed. I should also say that I am

especially grateful to these critics, not only because they flatter me by theiratten tion, but also because I have learned a great deal about my argument,

an d legal positivism in general, simply by tr ying to an swer the criticisms they

raise. Replying will also enable me to clarify parts of my argument and fill

in some gaps that I no w see need clarifying and filling.

I begin my reply by detailing the main argument I presented against

inclusive legal positivism. This argument aims to show that legal rules that

lack social sources are una ble to guide the behavior of judges when decid-

ing cases. I then consider Ken Himmas extensive reply to this argument

and attempt to meet h is impressive defense of H art.In the third section, I show how to extend th e main a rgument to cover

the case of the ord inar y citizen. This argument purports to show that r ules

tha t lack social sources canno t guide the cond uct of ord inar y citizens in the

way that legal rules are supposed to guide them. I then consider Wil

Waluchows and Jules Coleman s replies. Altho ugh I argue that Waluchows

argum ent misses the ma rk, I agree with Coleman tha t the proof I presented

was incomplete. I then suggest a way to bridge th e gap.

In the fifth section, I consider Matthew Kramers own argument against

a fo rm of inclusive legal positivism. Altho ugh I am sympa th etic to Kramersrejection of some forms of inclusive legal positivism, I argue th at h is style of

9. SeeKenneth Himma, H .L .A. Hart and thePractical Di fferenceT hesis, 6 LEGAL THEORY 143(2000); Will Waluchow, Authori ty and thePracti cal DifferenceThesis, 6 LEGAL THEORY 4581(2000);Matthew Kramer, How Moral PrinciplesCan Enter I nto the Law, 6 LEGAL THEORY 83108(2000).

130 SCOTTJ. SHAPIRO


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argum ent, in contrast to my own, has the wrong logical form. I then explain

why I th ink his critiq ue of my argument is unsuccessful.

In the first five section s, I con sider for ms of in clusive legal po sitivism tha t

I believe to be the most importan t versions of the theor y, tha t is, ones tha tpermit mora lity to be a sufficient cond ition of legality. In the sixth section ,

I argue that the version of inclusive legal positivism that relegates morality

to a possible necessar y con dition of legality is also unable to account for the

guidance function of the law. I then discuss Kramers attempt to extricate

H art from this difficulty and suggest th at his defense is based on a confla-

tion o f H arts with Razs theo ry of rules.

In th e eighth section, I d efend the claim I mad e at the end of my article

tha t H art s commitment to the P ractical Difference Thesis is predicated on

a more fundamental jurisprud ential commitment , namely, to a functiona l-ist conception o f law.10 I conclude by suggesting that the best way for the

inclusive legal po sitivist to mainta in h is position is by rejecting the function -

alist framework.

I. THE ARGUMENTPART ONE

Imagine a theo ry of law, ca lled legal skepticism, tha t claims law is essen-

tially unknowable. Legal skeptics do not deny the existence of law. They

accept that legal systems may exist and that, if they do, their content may

be wholly determina te. Legal skeptics mainta in, however, tha t the existence

of legal systems and their contents cannot be known by human beings.

There may be a fact of the matter, for example, whether Roe v. Wadewas

correctly decidedunfortunately, no one will ever know.

Legal skepticism is an absurd doctrine. It is absurd because the law

cann ot be the sort of th ing that is unknowable. If a system of nor ms were

unknowable, then that system would not be a legal system. One important

reason why the law must be knowable is tha t its function is to guide conduct.

Legal institutions exist in order to secure compliance through the pro vision

of rules. If its rules were in principle unknowable, then these rules could

not possibly guide conduct. And if these rules could not possibly guide

conduct, then they could not be legal rules.

I believe th at H arts version of inclusive lega l positivism suffers a similar

fate a s that of legal skepticism, a lthough in a much less obvious and dra-

matic way: Rules that are valid solely in virtue of their content cannot

possibly guide con duct. The argument that I shall present has two parts.

The first part a ttempts to sho w that such rules cannot guide the cond uct of

judges. The secon d part exten ds this result to ever yon e else.

Before I present these arguments, however, I would like to be more

explicit about certain assumptions that I will make in understanding the

Practical Difference Thesis. According to the Practical Difference Thesis,

10. Shapiro, supranote 3, at 5025.



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legal rules must in principle be capab le of securing confo rmity by making

a practical difference. Wha t exactly does it mean to make a practical differ-

ence? As a first approximation, we can say that a rule makes a practical

difference when it motivates an agent to act in a way tha t he might n ot haveacted h ad he n ot a ppealed to th e rule in h is practical reason ing. A rule is

capable of making a practical difference, therefore, when it is capable of

motivating an agen t to act in a way tha t he might not have acted had h e no t

appealed to the rule.

In order to evaluate whether a rule is capable of making a practical

difference, we begin by considering cases where an agent conforms to a

rule as a result of appea ling to it in h is practical reasoning. We then engage

in the following though t experiment: We con sider what the world would

have been like had the agent not appealed to the rule in his practicalreasoning.11 If the a gent might not have conformed to the rule, then we

say that the r ule does make a practical difference for him, an d therefore,

is capable of making a practical difference. If, however, the agent would

have conformed to the rule even if he h ad not appealed to it, then we say

that the rule is not capable of making a practical difference for that agent.

If th e r ule is not capable o f m aking a practical difference for any agent,

then we can say tha t the ru le is no t capable of making a practical difference

simpliciter.

The above procedure for determining whether a rule makes a practicaldifference is useful for man y cases of r ule-guided beha vior a nd is the test

tha t I used in my previous article. I now th ink that a slightly more nuanced

test is needed. The com plication is tha t an agent can appea l to a rule und er

several different descriptions. She might, for example, appeal to a rule

because the rule is a mora l rule, although the r ule is also a legal rule. It is

possible that the rule may make a practical difference as a moral rule, but

no t as a legal rule.

In order to determine, therefore, wheth er a legal rule makes a difference

qua legal rule, it will not be enough to ask whether the agent might no t haveconformed if that a gent h ad no t appea led to th e rule. We will ask wheth er

the agent might not have con formed if that agent had no t appealed to the

rule as a legal rule. If the agent might no t have confor med to such a r ule if

the appeal is no t mad e und er tha t description, then we will say that th e rule

did make a difference to th e agents practical reason ing as a legal rule.

Having said something about what constitutes a practical difference, let

me say a brief word about th e notion of rule-con for mity. In th is paper, I will

take a slightly broader view of r ule-conformity than is usual. According to

the customar y definition, rule-conformity is only defined for rule-address-

11. Because we wan t this thought experiment to b e a contro lled on e, we must make sure toho ld as fixed as possible the set of reasons that th e agent believes he ha s for con formin g or notconforming. For if some o f the reasons change in the suppositional scenario an d the agentdoes not co nfor m, we will not know whether it was the absence of the rule or the o ther reasonthat mad e the d ifference.

132 SCOTTJ. SHAPIRO


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ees. An agent who is add ressed by the rule con forms to th e rule just in case

his conduct is in accord ance with its content. Judges conform to legal rules

on th is account only when they act in accordan ce with rules add ressed solely

to th em (e.g., when they empanel juries at the beginn ing of trials, sentencemurderers to life imprison ment, do no t take bribes, etc.)

H owever, there is a sense in which we can speak of judges conforming to

rules that are not directed at them, namely, when they are charged with

applying r ules to others to whom they are add ressed. A judge conforms to

such a rule just in case he correctly evaluates cond uct in a man ner specified

by the rule. If a rule proh ibits jaywalking, a judge conforms to that rule just

in case she finds that jaywalkers have, and that nonjaywalkers have not,

engaged in wrongful conduct.

We can say tha t, according to the Pra ctical Difference Thesis, every legalrule must in principle be capable of performing a dual ro le. First, a legal

rule is supposed to motivate the norm-addressee to act in ways tha t he might

not have acted had he not appealed to the rule in h is practical reason ing.

Second, a legal rule is supposed to motivate an evaluator to evaluate con-

duct o f norm-addresses in a way tha t she migh t not have done had she not

appea led to the rule in h er evaluation s. The function of a no -jaywalking

rule, therefore, is to get people not to jaywalk, as well as to get judges to

evalua te jaywalking as wrongful beha vior.

Now the argument. Consider a legal system in which judges are guidedby an inclusive rule of recognition , i.e., by a rule tha t requires judges to

evaluate conduct in accordance with norms that are morally acceptable

irrespective o f whether these no rms h ave social origins. Further, consider

cases in which a judge is guided by an inclusive rule of recognition and

correctly evaluates cond uct in light of mora l rules that lack social sources.

To test whether such moral rules can guide conduct, we should ask

whether this judge might have a cted differently had he not appealed to

such rules as legal rules in his practica l reasoning. We thus pose the follow-

ing counterfactual question: If the judge ha d not a ppealed to those moralnorms as legal no rms in h is deliberations, would he h ave been mot ivated to

conform to those norms anyway in his evaluations? The answer to this

question appears to be yes. Because the rule of recogn ition will require the

judge to evaluate con duct in accorda nce with rules tha t are morally appro-

priate, h is evaluative practices will conform to the moral n orms regard less

of whether he directly appealed to these norms themselves as legal rules.

This shows that moral norms that lack pedigrees cannot make practical

differences to judges, because a judge would a lways conform to those rules

regardless of whether he appealed to them as legal rules or not, provided,of course, he guides his conduct by an inclusive rule of recognition.

Such an argument will no t work for rules tha t are valid in virtue of their

socia l source. To see th is, con sider cases in which a judge is guided by an

exclusive rule o f recognition , i.e., by a rule th at require judges to evaluate

conduct in accordance with norms that possess the appropriate social



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pedigree. Further, a ssume tha t a judge has successfully evaluated conduct

in light o f rules that have eman ated from the appropriate socia l sources. We

now pose the same counterfactual question we did before: If the judge were

guided by the exclusive rule of recognition, but did not appeal to thesenorms as legal no rms in h is deliberations, would he h ave been motivated to

con form to tho se norms anyway in h is evaluation s?

The answer to th is question is maybe not. Con sider th ose counter-to-fact

situations in which the rules in question are repealed or have never been

enacted. In such cases, the judge might no longer be motivated to evaluate

con duct in light of such rules, because they no longer possess the appropri-

ate social pedigree. This difference in mo tivation obta ins even th ough the

judge is guided by the same rule of reco gnition , tha t is, he is still motivated

to evaluate conduct in light of all the rules that have the right socialpedigree. Legal rules that are valid in virtue of their socia l source, therefore,

are capa ble of making practical differences because such r ules are capable

of motivating agents to act in ways tha t they might n ot have acted had they

no t appea led to these rules in practical reason ing.

This argument demonstrates that legal positivists, like Hart, who sub-

scribe to the Conventionality and Practical Difference Theses cannot be

inclusive legal po sitivists. For if judges are guided by an inclusive rule of

recognition, then they cannot be guided by any o f the rules supposedly

validated by it given that such r ules cann ot make a difference to th epractical reasoning of judges. Exclusive legal positivism remains the only

option for legal positivists who believe that every legal system contains a

social rule of recognition and that every legal rule must in principle be

capab le of securing conformity by making a practical difference.

II. RESPONSES TO ARGUMENTPART ONE

In his article Hart and the Practical Difference Thesis, Ken Himma re-

sponded to the above argument on Harts behalf. 12 Because Himmas

article is so chockablock with criticisms of my approach, I have taken the

liberty of selecting what I consider to be h is centra l arguments. They are:

(1) My argument against inclusive legal positivism presupposes a certa in con cep-

tion of r ule-guided behavior an d is effective o nly if such a conception is

presupposed. Since legal positivism is agnostic concerning the correct the-

or y of rules, H art can escape the difficulties by adopting a d ifferent account

of rule-guided behavior.

(2) My argument in favor o f exclusive legal positivism presupposes that legal, asopposed to moral, systems are thoro ughly dynamic. H owever, a ccording to

Harts account o f the m inimum con tent o f na tural law, certain rules neces-

sarily exist, thereby rendering parts of legal systems static. Moreover, accord-

12. Himma, supranote 9.

134 SCOTTJ. SHAPIRO


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ing to certain conceptions of morality, moral systems are thoroughly dy-

namic.

(3) My argument presupposes that Hart subscribed to the Simultaneous Guid-

ance Thesis, which h olds that it must be possible for judges to guide their

conduct bo th by primar y and secondar y rules at the same time. H owever,

there is no reason to attribute to Hart such a view.

(4) My argument presupposes that th e function of legal rules is to guide no rm-

evaluators when deciding ca ses, whereas for H art their function is to guide

norm-addressees when deciding whether they ought to conform to the

contents of th e rules.

(5) My argument presupposes that judges will be motivated by primary legal

rules, whereas Hart required only that they be motivated by the secondary

rules.

(6) My argument presupposes that H art subscribed to th e Pra ctical DifferenceThesis, but there is no reason to attribute this position to him. Moreover,

nothing in his Functionalist theory commits him to such a view.

I discuss the first four issues in the subsections that follow. 13 Due to

expositional d ifficulties, I respond to the fifth cha rge in foo tno te 74. I defer

discussion of the last cha llenge to the end of th is paper.

A. Counterfactuals and Rule-Guidance

H imma spends a considerable amount o f space in his article attempting to

show tha t th e counter factual inference th at I d rew is fallacious. H e repre-

sents my argument as follows (let M name a moral rule that lacks a

pedigree):14

(1) A rule R guides a person P to d o an action A if and o nly if P would not h ave

don e A if R had not been a r ule;

(2) It is no t possible tha t M is no t a r ule;

(3) Therefo re, it is no t the case that M guides P to do A.

Himma points out that (3) does not follow from (1) and (2). Ind eed, the

negation of (3) follows. As he explains, under the LewisStalnaker semantics

for counterfactuals, the right-hand side of (1) will be true just in case the

most similar worlds to the actual world15 where R is no t a rule are also worlds

where P do es no t do A. H owever, from (2) it followsthat every world isa world

where R is a rule. H ence, it is trivially true tha t all worlds where R is no t a rule

is also a world where P do es no t d o A, precisely because there a re no such

worlds. If the right-ha nd side of (1) is true, the negat ion of (3) must be true.

13. I have made ever y effort to keep each section as self-con tain ed as possible. In th is way,the rea der may skip d iscussions that are n ot o f interest.

14. Himma, supranote 9, at 16.15. For the sake of simplicity, I am presupposing th e Limit Assumption . SeeDa vid Lewis,

COUNTERFACTUALS 1921 ( 1973).



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Himma is certainly right about this result. Unfortunately, this argument

bears little resemblance to my argument. Himma presents (1) 16 as a char-

acterization of th e concept of rule-guidan ce that I claim H art must accept.

H owever, not on ly did I no t claim tha t H art a ccepts, or should accept, suchan account, it is clear tha t no one could possibly accept it. In o rder for an

agent to be guided by a rule it is at least necessary for the agent generally

to conform to the rule when it applies. (1) does not require conformity.

According to (1), the serial killer is being guided by the rule against murder,

for if murder had been morally permissible (whatever that may mean), he

would still have gone about killing people.

If anything, (1) should properly be seen as imposing a practical differ-

ence requirement on rule-guidan ce; i.e., an agent is guided by R on ly if the

rule makes a practical differen ce. The righ t-han d side of (1) would then beseen a s setting out a possible characterization of th e concept of a pra ctical

difference; i.e., a rule R ma kes a practical d ifference on ly if R would no t

have confor med to R if R had n ot been a rule.

Even con ceived as a characterization of th e concept o f a practical differ-

ence, (1) is significantly different from the characterization I employ. Ac-

cording to my account, a legal rule makes a practical difference when an

agent might not have conformed to the rule had he not appealed to the

rule as a legal rule:17

(4) A legal rule R guides a person P to d o A only if P might n ot h ave done A if

he had n ot appealed to R as a legal rule.

(4) differs from (1) in three respects. First, (4) merely imposes a necessary

condition on r ule-guidan ce, not a n ecessar y and sufficient condition . Sec-

ond , (4) is a might-counterfactual. It does no t require that an a gent would

not have con formed to R if he did not appea l to Rit on ly requires tha t the

agent mightnot have conformed. This makes a considerable difference. If

one were to substitute might for th e would in (1), (3) is in fact true.I will not trouble the reader with the proo f.18 It does not matter an yway

because (4) is not, in fa ct, the migh t-counterpart o f the n ecessar y condition

16. Himma refers to it as (MG2). Himma, supranote 9, at 21.17. As I men tioned in Section I, th is is no t the chara cterization o f practical difference tha t

I offered in the original article. According to that characterization, a legal rule R guides aperson P to do A only if P might not have done A if he had not appealed to R. The threedifferences mentioned in th e text between ( 4) and (1), ho wever, apply, muta tis mutan dis, tothis older ch aracterization as well.

18. Accordin g to the LewisStalnaker semantics, migh t-counter factuals bear th e same rela-tion to would-counter factuals as possibility bea rs to necessity, i.e., that o f du ality. Just as It ispossible that B is equivalent to It is no t the case that it is necessar y that n ot-B, If B were thecase, then C might b e the case is equivalent to It is not the ca se that if B were the case, thenno t-C would be the ca se. A migh t-con ditiona l is true just in ca se some of the closest world s tothe a ctual world where the an tecedent is true is also a world where the con sequen t is true. Ifthere a re no words where R is no t a r ule, then it trivially follows tha t P might n ot h ave doneA if R had not been a rule is false. Hen ce, (3) is true.

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version of (1), for (4) differs from (1) in a third respect. (4) does not

require that an agent might not conform to R i f R were not a ru le. It merely

requires that h e might no t conform i f he did not appeal to the rule as a legal

rule. According to (4), it is entirely possible for a rule to make a practicaldifference, and for it to guide cond uct, even if it were impossible for the

rule not to be a rule. All we h ave to imagine is that the a gent d oes not

appeal to R as a legal rule and ask whether th at agent will conform. If, in

some of the most similar situations where th e agen t fails to appeal to R, he

does not conform to the rule, then we can say that the rule is capable of

making a practical difference.

H imma knows tha t (4) differs from (1) in this respect. And h e knows that,

given the conception of rule-guidance I a ctually presented , the argument is

valid. Why then does he bo ther to present an invalid argument only to sho wthat it is invalid? Himmas point is that (3) does not follow if a different

conception of rule-guidance is presupposed, namely, th e one expressed by

(1). And if the argument I offered is not robust across conceptions of

rule-guida nce, it is always open to H art an d the inclusive legal po sitivist to

save th e theor y by swapping conceptions.19

I do not think that Himma is suggesting that any conception of rule-

guided beha vior would be acceptable to th e positivist. For o ne can imagine

some conceptions that would clearly be unacceptable. For example, if on e

though t tha t a rule is capable of making a practical difference only if thatrule were a moral reason to act, then it would follow that no legal rule could

be capable of guiding conduct unless it were a moral reason to act, and

hence no rule could be a legal rule unless it were a moral reason to act.

H imma would certainly agree tha t this conception is ruled out by positivistic

strictures. His point, I take it, is that a great variety are admissible, and

hence th e inclusive legal po sitivist may help h imself to any of th em to get

out of difficulties.

H owever, selecting the appropriate conception o f rule-guided beh avior is

no t like picking the righ t pa ir of socks to go with on es sho es. The positivistis comm itted to subscribing to th e conception of rule-guided beha vior tha t

is correct, or a t least that is as correct as all oth ers. And it seems to me th at

(1) does not provide for an adeq uate account o f practical difference. Ho w,

for example, do we determine under (1) whether an agen t is being guided

by a mora l rule? Consider th e rule against murd er. Accord ing to ( 1), John

is being guided by the rule aga inst murd er on ly if he would kill someo ne if

there were no such rule. To evalua te this counterfactual, we would have to

imagine the m ost similar po ssible worlds to th e actua l world where murder

is permissible and see whether John kills in that world. But what does apossible world look like where murder is permissible? Personally, I have

trouble conceiving of such possibilities. But even if I could, such imaginative

19. Himma, supranote 9, at 2123.



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leaps are obviously no t required in ord er for me to evaluate the question o f

whether John is guided by the rule against murder.

Lastly, it is not even true that the conception of rule-guidance that

Himma suggests will save Hart. Himma makes this mistake because hemisrepresents the logical form of my argument. My argument can be

represented as follows:

(5) If P is guided by an inclusive rule of recogn ition, then P will be guided by M

only if P might n ot h ave conformed to M if P h ad not appealed to M as a

legal rule but con tinued to be guided b y the inclusive rule of recogn ition;20

(6) Necessarily, if P is guided by an inclusive rule of recognition, then P con-

forms to M;

(7) Therefore, if P is guided by an inclusive rule of recognition, then P will not

be guided by M.

According to (6), every world where P is guided by an inclusive rule of

recognition is a world where P confo rms to M. A fortior i, every world where

P is guided by an inclusive rule of recogn ition and d oes no t appeal to M as

a legal r ule is a world where P con forms to M. A fortior i, the most similar

worlds to the actua l world where P is guided by an inclusive rule o f recog-

nition and P does not appeal to M as a legal rule are all worlds where P

conforms to M. H ence, if (6) is true, (8) is true.

(8) P would have confor med to M, if P had n ot appea led to M as a legal rule but

continued to be guided by an inclusive rule of recognition.

Taking th e con trapositive of the conseq uent of ( 5) gives us:

(9) If P is guided by an inclusive rule of recognition, then if [P would have

conform ed to M, if P h ad n ot appealed to M as a legal rule but continued to

be guided by an inclusive rule of recognition], then P will not be guided

by M.

Since (8) appears between the brackets in (9), (7) follows trivially.

Notice that (7) follows even if we use something like Himmas (1) as the

first premise in the argument. The proof is invariant with respect to the

antecedent o f the consequent counter factual conditional. H immas sugges-

tion that the inclusive legal positivist adopt (1) as his characterization of

rule-guidan ce is, therefore, n o solution.

20. The last clause but con tinued to be guided by the inclusive r ule of recognition isadded to ensure that the most similar worlds to the actual world where P does not recognizethat M applies are also worlds where P is guided by the inclusive rule o f recognition. Thiscann ot b e guara nteed simply by assuming the an tecedent o f (5) true. It is only by consideringworlds where P does not appea l to M as a legal rule and is also guid ed by an in clusive rule ofrecognition th at we can deter mine whether M makes a difference as a legal rule over and ab ovethe difference tha t the rule of recogn ition makes.

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B. Static and Dynamic

The inclusive part of an inclusive rule of recognition is staticthe set of

actions that it is capable of motivating is fixed. If some course o f con ductunder some set of conditions is morally wrong, then a judge required to

evaluate such con duct in accord ance with the principles of mora lity would

be legally obligated to declare such con duct wrong und er these conditions.

This outcome can never cha nge.

The static nature of an exclusive rule of recognition is a reflection of the

static nature of morality.21 Moral rules do no t go in an d out of existence. If,

at some time, some rule is morally valid, then it is always morally valid.

Morality, th us, cont rasts starkly with law. Lega l systems are dyna mic insofa r

as their identities can be, and normally are, preserved through varioustransformations of their conten t. Legal codes may change, but moral codes

may not.22

Premise (6) attempts to capture the static quality of inclusive rules of

recognition . According to (6), it is a necessar y truth tha t if a judge is guided

by an inclusive rule of recognition , then he will conform to M, where M is

some mora l rule. As we ha ve seen, M can no t guide conduct because it is not

possible for a judge to be guided by the inclusive rule of recognition and

not con form to M. The static nature o f an inclusive rule of recognition will

not allow for it.By contrast, it is not a necessar y truth that if a judge is guided by an

exclusive rule of recognition, then he will conform to L, where L is some

rule that has the appropriate social pedigree at some time t. For we can

always suppose that L does not h ave the a ppropriate pedigree at t, in which

case a judge guided by the exclusive rule of recogn ition might n ot con form

to L.

Therefore, if primar y legal rules are to be capable of making practical

differences, we must make sure that the secondar y rules pick out a class of

no rms whose membership is no t fixed. Exclusive rules of recognition satisfythis requirement. The set of pedigreed rules fluctuates depending on which

rules bear the right pedigrees at any given time. Exclusive rules of recogni-

tion are dynamic in the sense tha t they are capab le of motivating d ifferent

actions at d ifferen t times. This dyna mism is what ensures the consistency of

exclusive lega l positivism with the P ract ical D ifferen ce Thesis.

H imma disputes my claim th at th e class of ped igreed rules is thoroughly

dynamic. Appealing to H art s doctrine of the Minimum Con tent of Natura l

21. By claiming that morality is a static system, I do not mean to imply that morality isabsolute. Someone can be a mor al relativist and still believe that mo rality is static. For the m oral

relativist can believe tha t even though there a re ma ny mo ralities, ea ch o ne is static. For thesake of co nvenience, h owever, I have been ta lking, an d will continue to talk, as if there wereon ly on e correct mora l system.

22. The whole contrast between natural and positive law may, in a certain sense, bepresented as the contrast between a static and a dynamic system of norms. Hans Kelsen,G ENERAL THEORYOF LAW AND STATE 400 (And ers Wedberg ed ., 1945).



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Law, he contends that certain legal rules are necessary constituents of any

legal system.

[I]t is not always a contingent matter as to what rules are valid under anexclusive r ule of recognition. H art argues convincingly that there a re some

rules that must be valid in order for a system of rules to operate as a legal

system. For it is a con ceptual truth tha t law must con duce to the minimum

purpose of survival which men have in associating with one another and

there could not be a society in which theft and violence are not prohibited.23

And if certain primary legal rules are n ecessar y for th e existence of a legal

system, then a subset of the class of ped igreed r ules is fixed. Accord ing to

my argument, th en, rules tha t are members of that subclass cannot make a

practical difference.

Let XRoR be an exclusive rule of recognition and let RNL be a valid rule

under XRoR th at reproduces some portion of the minimum content of the

natural law. If the judge is motivationally guided by XRoR, she cannot be

motivationally guided by RNL. Though RNL is valid in virtue of having an

appropriate source, it is a conceptual truth th at there could not be a legal

system in which XRoR is a binding rule of recognition and RNL is not a valid

rule. For this reason, there is not sufficient elbow room for RNL to ma ke a

practical difference in the judges deliberations.24

If every rule that comprises the minimum content of natural law is a

necessar y con stituent o f every legal system, th en we are una ble to imagine

a situation where a judge does no t con form to such rules if he is guided by

an exclusive rule of recognition. Any such rule would be incapable of

making a practical difference despite its possessing a pedigree. It follows,

according to Himma, that the Practical Difference Thesis is also inconsis-

tent with exclusive legal positivism. If so, there would be no benefit in

cho osing exclusive over inclusive lega l positivism on th is ground.In response, two po ints can be ma de. First, H imma is wrong to charac-

terize Harts doctrine about the minimum content of natural law as a

conceptual claim. H art is quite explicit tha t h e thinks it coherent to con-

ceive of a legal system that lacks any or all such content.

There a re no settled principles forbidding the use of the word law of systems

where there are no centrally organized sanctions, and there is good reason

(though no compulsion) for using the expression international law of a

system, which has none. On the other hand, we do need to distinguish the

place that san ctions must have within a municipal system, if it is to serve the

minimum purposes of being constituted as men are. We can say, given the

setting of natural facts and aims, which make sanctions both possible and

23. Himma, suprano te 9, at 14 (citing H art, supranote 6, at 193).24. Himma, supranote 9, at 15.

140 SCOTTJ. SHAPIRO


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necessar y in a m unicipal system, that this is a natural necessi ty;and some such

phrase is needed also to convey the status of the minimum forms of protec-

tion for persons, property, and promises which are similarly indispensible

features of municipal law. It is in this form that we should reply to the

positivist th esis tha t law may have an y con tent.25

H art did not, therefore, believe tha t any primar y legal rule was conceptually

necessary. The only rules that a re no t con tingent members of a lega l system

are the rules of recognition , change, and adjudication.

Second, even if Harts doctrine of the minimum content of natural law

were taken as a con ceptual claim, this would no t sho w that th e existence of

any particularrule is necessar y. The doctrine merely requires that every

legal system contain certain kindsof rules. For example, every legal system

must have rules prohibiting some forms of physical aggression betweencertain members of the community. H owever, there are a n end less variety

of rules that satisfy this req uirement. A complete ban on assaults certain ly

counts, b ut so does on e that prohibits anyone from assaulting whites, yet

permits whites to a ssault blacks. As H art argued a gain st natural law theo rists

in the section following his discussion of the minimum content of natural

law, [t]he pro tections and benefits provided by the system o f mutual

forbearances which underlies both law and morals may, in different socie-

ties, be extend ed to ver y different ran ges of person s.26 Therefore, to show

that any particular r ule that resides within the minimum con tent makes apractical difference, we need merely imagine that such a rule has been

replaced by a different rule from the same general category.

Himma also disputes my claim that morality is a static normative system.

H e claims tha t accord ing to ethical subjectivists mora lity is dynamic.

Ethical Subjecti vi sm:For all norms R, R is a morally valid rule in group G if and

only if the majority of the members of G accept R as a morally valid rule.27

The ethical subjectivist, therefore, believes that mora lity is a dyna mic system

because its content is a function of the attitudes of the members of th e

relevan t group. If members of G no longer believe tha t promises should be

kept, then morality would no longer req uire that pro mises be kept in G . If

ethical subjectivism were true, th en an ethica l subjectivist could account for

the practical difference tha t pedigreeless moral rules are capab le of making

in inclusive systems.

[F]or any R morally valid in virtue of what people in G believe and legally

valid in virtue of its moral merit under a sufficiency rule SRoR, R is capable

of motivation ally guiding the judge insofar as it is possible that SRoR validatessome R* inconsistent with R. Since it is possible that people in G accept R*

making R* mora lly valid in G , it is possible tha t SRoR validate R* in G . Und er

25. Hart, supranote 6, at 199.26. Id. at 200.27. Himma, supranote 9, at 16.



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the assumption that ethical subjectivism is true, a judge in G can simultane-

ously be motivationally guided by SRoR and R.28

In order to evaluate Himmas interesting challenge, it will be helpful to

introduce the d istinction H art drew between critical mora lity and posi-

tive morality.29 The critical morality of a group represents the set of rules

that are morally valid in that group. The positive morality of a group

represents the set of rules that members of that group accept as morally

valid in that group. Ethical subjectivism, therefore, attempts to reduce

critical to positive morality: A rule is morally valid in a group if and only if

it is accepted by members of tha t group.

I doubt that H imma takes ethical subjectivism to be a metaphysical

theo ry. Rather th an rescuing inclusive legal positivism, a metaph ysical re-

duction of critical to positive mora lity would eviscerate it. Ethical subjectiv-

ism, understood metaphysically, would claim that moral properties are

empirical properties about social groups. If th is were so, then inclusive legal

positivism would collapse into exclusive legal positivism, because both

would d emand that legal norms have social sources and that these no rms

are valid in virtue o f th ose sources.

Himma must want ethical subjectivism to be understood not as a meta-

physical theory, but as a semantic one: What we mean when we ascribe

moral validity to a certain rule is just that it is accepted by members of our

group. O n this view, our un derstand ing of critical mora lity would admit of

a d yna mic elementbecause the set of r ules we describe as morally valid is

determined by the attitudes of th e members of our group, th e set chan ges

when our attitudes chan ge.

U nd erstoo d seman tically, ho wever, ethical subjectivism is essentially a

corollar y of H art s Pra ctice Theory of rules and, as a result, suffers the same

defects. In TheConcept of Law, H art claimed th at a r ule exists in a group only

if it is accepted by the members of the group from the internal point of

view.30 H art later aban don ed th is theor y because, as Dworkin pointed out,

it would be impossible for a member to criticize the social morality of the

group.31 If Smith refuses to take off his hat when entering a church and,

when challenged, claims that the no ha ts in church rule is invalid, he is

not being incoherent, although he might nevertheless be wrong. Critical

morality is, a fter a ll, criticalthe con cept a lways allows someone to criti-

cize the d ominan t morality of th e group in which he lives.32

Ethical subjectivism, like the Practice Theory, condemns moral criticism

of the majority as a con ceptual matter. H art would h ave do ne himself no

28. Id.29. SeeH.L.A. Hart, LAW, LIBERTYAND MORALITY 17 (1963).30. SeeHart, suprano te 6, at 5456, 8688.31. SeeRona ld Dworkin, TheModel of RuleI I , in TAKING RIGHTS SERIOUSLY, suprano te 3, at 46,

5253.32. Recall Webers description of th e charismatic lead er: It h as been written th at . . . , but

I say unto you. . . . Max Weber, ECONO MY AND SOCIETY 1115 (Guenther, Roth, and ClausWittsch , eds., 1968).

142 SCOTTJ. SHAPIRO


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favor were he to have returned to the Practice Theory simply to save

inclusive lega l po sitivism.

C. The Simultaneous Guidance Thesis

The argument presented in section I d id not purport to show that judges

cannot be guided by a moral rule that lacks a social pedigree. Rather, it

attempted to demonstrate that judges cannot be guided by a moral rule

that lacks a pedigree at the same timeas they are guided by an inclusive

rule of recognition.

H imma believes that H art can consistently accept bo th this conclusion

and the Practical Difference Thesis. According to Himma, even assuming

that H art req uired th at primar y legal rules are capable of making practicaldifferences, h e d id n ot think that they must do so at the same time that

secondar y rules guide conduct. H imma calls the req uirement that primar y

rules be capable of guiding conduct concurrent with the guidance of

secondary rules the Simultaneous Guidance Thesis and claims that Hart

never held such a view.33

H imma is right that H art never ann ounced a commitment to the Simul-

taneous G uidance Thesis, but he d id the next best thing. H e claimed th at

in the no rmal course of events, judges treat the primar y legal rules as guides

to their conduct.

[I ]t is surely evident tha t fo r th e most part decisions, like th e chess-players

moves, are reached either by genuine effort to con form to r ules consciously

taken as guiding stan da rds of d ecisions or, if intuitively reached, are justified

by rules which the judge was antecedently disposed to observe and whose

relevance to the case in hand would generally be acknowledge. 34

Since Hart was committed to the Conventionality Thesis, he also thought

that judges are nor mally guided by the rule of recognition. The normalstate of af fairs is thus one of simultaneous guidanceof judges guided both

by the rule of recognition and by the rules validated by it. If judges nor mally

guide their conduct both by the seconda r y and primar y rules, it follows that

the primary legal rules must be capable of guiding conduct even if judges

guide their conduct by the second ar y rules.

In response, Himma might concede that the normal state of affairs is one

of simultaneous guidance and that, in those situations, the primary legal

rules are capable of guiding conduct. Yet, he might argue tha t this do es no t

require Hart to admit that everylegal rule must be capable of guidingconduct con current with the guidance of the second ar y rules. The fact tha t

judges are fo r the mo st part guided by both primar y and second ar y rules

33. Himma, supranote 9, at 3536.34. Hart, supranote 6, at 141.



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can be attributed to th e rules tha t have pedigrees. If so, there would be no

reason to insist that r ules tha t lack pedigrees be capable of guiding conduct

at the same time as the rule of recognition guides conduct.

Two responses are in order. First, when Hart claimed that judges areguided by primary legal rules for the most part, he was simply making

allowances for cases in which judges disregard the rules and render deci-

sions on th e basis of their own political or personal preferences. In doing so,

H art was agreeing with the legal realists tha t judges sometimes ignore th e

law. He stron gly den ied, however, that this is the no rma l state of affa irsfor

the most part judges treat the rules as reasons for action and act for th ose

reasons, or at least are prepared to justify their actions by reference to such

reason s. When judges are honest to themselves and to others, my sense is

that H art would have admitted that the primary rules guide their conduct atthe same time as the rule of recogn ition guides their conduct.

Second, strange results follow when it is allowed that rules that lack

pedigrees need not guide cond uct in the face of guidance by the rule of

recognition. For accord ing to the Convention ality Thesis, legal r ules exist

only because judges are guided by the rule of recognition that sets out

criteria that the existing rules satisfy. Hence, if legal rules that lack pedi-

grees cannot guide conduct at the same time as the rule of recognition

guides con duct, it turn s out th at th ose who create these rules can never use

them. Only those who play no role in their generation can utilize them inguiding their conduct.

This is a stran ge result, but perhaps no t fa tal. H imma may be willing to

accept it for the sake of preserving the coherence of inclusive legal positiv-

ism. As I will show in the next section, however, legal rules that lack

pedigrees cannot even guide the cond uct of judges who do not guide their

cond uct by the rule of recognition.

It sho uld be pointed out tha t exclusive legal positivism does no t generate

such results. Even though a judge is guided by an exclusive rule of recogni-

tion , she may still be guided by a rule valida ted by it. We migh t say tha t on lypedigreed rules can result fromrule-guided beha vior and still result in

rule-guided behavior.

D. Two Notions of Conformity

As we have seen, the violation of the P ractical Difference Thesis occurs on ly

with respect to agents, such as judges, who guide their conduct by their

systems rule of recognition . Ord inar y citizens need no t, and, a t least in oursystem, generally do not, guide their conduct by the rule of recognition.

On e canno t conclude from the argument, therefore, tha t ordinar y citizens

cannot be guided by moral rules tha t lack social pedigrees.

The limited scope of th is argum ent migh t be thought to give Hart an out.

As H imma a rgues, Hart migh t respond tha t the P ractical Difference Thesis

144 SCOTTJ. SHAPIRO


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has been formulated too broad ly. Legal rules need no t necessarily play dua l

rolestheir only essential function is to secure conformity amon g the

norm-addressees. The fact tha t mora l rules that lack social sources cann ot

make a difference to the evaluative practices of judges does not countaga inst th e Practical Difference Thesis because it is only for those to whom

legal rules are add ressed th at th ese rules must make a d ifference.

This response fails for four reasons. First, as we saw in the previous

section , Ha rt believed that in the nor mal course of events judges are guided

by primar y legal rules in ad judication . If primary legal rules guide judicial

cond uct, then they must be capable of guiding judicial conduct. A theor y

that had the consequence tha t certain primar y rules could not make prac-

tical differences for judges would thereby be unab le to account for th e fact

tha t primar y legal rules guide judicial conduct, at least fo r the mo st part.Second, not only did Hart believe that primary legal rules normally

guided con duct in ad judication , but he also believed tha t this is one of their

function s: I think it quite vain to seek an y more specific purpose which law

as such serves beyon d pro viding guides to human conduct and standards of

criti cism of such conduct.35

Third , many of the sourceless moral n orms tha t inclusive legal positivists

wish to counten ance as legal norms, or at least as eligible to be legal norms,

are in fact ad dressed to judges. Consider the norm tha t played the star ring

role in Riggsv. Palmer, and which Dworkin made famous: No person shouldbe permitted to profit from their own wrong. 36 This nor m is not directed

at murdering beneficiariesit is directed a t those who are in a position to

invalidate certain transactions that would result in a wron gdoer profiting

from his wrong, e.g., judges. As the argumen t above shows, this no rm could

not make a practical difference to th e ma jority in Riggsif they were being

guided, a t the same time, by an inclusive rule of recognition .

Fourth, while the argument presented only shows that sourceless rules

cannot guide the behavior of judges, because they cannot make a practical

difference, this does no t mean that th ey can guide the cond uct of ordinar ycitizens. For it can be shown via a different argument that such rules cannot

guide the conduct of ordinary citizens even if they do not guide their

conduct by the rule of recognition. In order to present this argument,

however, we must be clear about the different ways that rules can guide

conduct and the way that Hart believed that legal rules are supposed to

guide the con duct of ordinar y citizens.

III. THE ARGUMENTPART TWO

Right now, I am conforming to the r ule prohibiting murder. H owever, we

all sho uld ho pe, I am n ot being guided by it. Since I have no inclina tion to

35. Id. at 249 (emph asis added ).36. Riggs v. P almer, 115 N.Y. 506, 22 N.E. 188 (1889).



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murder anyon e at this moment, I have no n eed to appeal to such a rule. We

say that an agent is guided by a rule only when the rule makes a difference

to h is practical reason ing.

U nfortunately, rule-guidan ce is an ambiguous label, for legal rules canaffect practical reasoning in several different ways. In the first instance, one

can look to a legal rule as a means of finding out whether the law regulates

certain conduct and, if so, how. The potential jaywalker might consult the

no -jaywalking r ule to determine whether jaywalking is a lawful activity. If he

conforms as a result of learning from the r ule that jaywalking is proh ibited,

tha t is, if he crosses on ly at the corner and with the green light, then we can

say tha t h is conduct h as been epistemically guided by the rule.37

Epistemic guidan ce is agn ostic with respect to the agen ts ultimate moti-

vation s for conformity. A person might conform to the rule simply becausehe wan ts to avoid being punished for b reaking the law. Or he might

con form because he believes tha t he has a mora l obligation to be a law-abid-

ing citizen. Central to epistemic guidan ce is the fact tha t th e rule was the

source of informationregarding what counts as conformity, not necessarily

the source of motivationfor conformity.

Epistemic guidance, however, is no t purely epistemic. An agen t has not

been epistemically guided by a r ule if he violates the rule. The agen t must

confor m to the rule, and informa tion gleaned from the rule must form at

least part o f the reason for such confo rmity.There is an other sense of rule-guidan ce, however, where the motivational

role of the rule is crucial. We can say tha t an agent is motivationally

guided by a rule when the agent takes the rule as the sole source of his

motivation for conformity, i.e., when h e con forms simply because the rule

regulated th e cond uct in question. In our jaywalking example, if the agent

conforms simply because there is a rule that forbids jaywalking, then that

agen t has been motivation ally guided by the law.

With th ese two con cepts of rule-guidan ce in mind, we sho uld a sk which

one Har t had in mind when he declared tha t the principle function s of thelaw as a means of social control are . . . to be seen in th e d iverse ways in

which th e law is used to control, to guide and to plan life out of court.38

Did he mean epistemic or motivational guidance?

I think tha t there are two fa irly stron g reasons to believe that H art meant

epistemic guidance. First, if the function of legal rules were to motivation -

ally guide conduct, then it would be irrational for legal officials to enact

rules when they believed th at people were motivation ally indifferen t to the

law qua law and complied only to avoid the sanctions attendant to their

violation. But surely it makes sense to enact rules in order to guide thecond uct of those hostile to authority. H olmess bad man does not motiva-

37. When I say that an agent has learned information from the rule, this should beund erstood as short-han d for the agen t having learn ed the inform ation from some statemen tof th e rules content.

38. Hart, suprano te 6, at 40.

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tionally guide his conduct according to the law, but he does epistemically

guide h is cond uct, at least when legal regulations are correlated with the

imposition of significant sanctions, or the risk thereof.

Second , it would be strange to claim th at, a s a con ceptual matter, legalofficials must care about the motivational sources of conformity. Why must

they ha ve an interest in the reasons why people obey the law, as long as they

obey? More plausible is the idea th at the essential fun ction of legal rules is

to ensure that people obey the law, not that they obey it for a certain reason .

To be sure, it is an essent ial fea ture o f legal rules that they have the capacity

to motivationally guide,39 and , indeed, this capacity explains why many d o

in fact con form to the law. Yet, the guidan ce function of th e law is served

regardless of whether people confo rm out o f a sense of moral obligation,

tradition, ha bit, or fear.If the function of legal rules is simply to secure conformity, we might

wonder why they are even n eeded . After a ll, why can t people simply appeal

to moral rules, or other social rules, to answer their practical questions?40

As Hart explained, the introduction of legal rules cures several problems

that would plague any attempt to guide conduct without th em.

It is plain th at on ly a small commun ity closely knit by ties of kinship, common

sentiment and belief, and placed in a stable environment, could live success-

fully by such a regime of unofficial rules. In any oth er cond ition such a simple

form of social con trol must prove d efective. . . . H ence if d oubts arise a s to

what the rules are or a s to the precise scope o f some g iven r ule, there will be

no procedure for settling this doubt.41

In a system o f pure customar y rules, where ru les exist if and only if they are

accepted as bind ing by the members of a group, any doubt or disagreemen t

as to the existence of a certain rule can be resolved only thro ugh an appeal to

shared judgments about what ought to be done. This method of dispute

resolution would be unavailable, or prove ineffective, in any group that

exhibited a significant degree of heterogeneity in beliefs and values. The

problems of uncertainty could not be cured by appealing to a common fund

of judgments about wha t ought to be done in a group tha t lacked such a fund.

Even when members of a group are in general agreement about the

principles tha t should govern their af fairs it may not be feasible for them to

appeal to such principles in order to resolve their disputes. For disagree-

ments often arise when the disputants have an interest th at the disagree-

ment be resolved in a certain direction, an d this interest may cloud their

judgment about the precise form, scope, or application of such norms. As

39. As Hart poin ted out, it is a fact of enormo us importan ce that legal rules are form ulatednot as naked threats but as rules, i.e., they are couched in the n ormative language of d uty,obligation, righ ts, and powers.

40. Recall tha t for H art the a nswer to this q uestion do es no t lie in the need for centra lizedenforcement and sanctioning. See id. at 9394.

41. Id. at 92.



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Locke emphasized in his Second Treatise of Government, feuds are likely to

brea k out even among the well-inten tion ed when they act as judges in cases

in which they are also the litigants.42 A pure system of primar y rules thus

resembles a Lockean State o f Nature, in which no au thor ity exists to resolvedisputes among quarreling coalitions.

The absence of sha red judgement in a group, however, may ha ve noth ing

to do with divergence in belief or sentiment. It may simply be a ttributable

to the fact tha t few have formed any beliefs about what ought to be don e in

the circumstances. As society becomes more complex, the ran ge of norma-

tive q uestions that can and do arise greatly expands, and no consensus or

dissension may emerge around any given issue, especially when it is one of

first impression. In the absence of some procedure for identifying those

rules tha t are binding on them, therefore, members of a certain group maynot know what they should do when faced with such questions. [T]he

puzzled man or igno ran t man who is willing to do wha t is required if on ly

he can be told wha t it is43 would be at a complete loss.

These problems are remedied, o r a t least greatly alleviated, by the intro-

duction o f authoritative marks. By an auth oritative mark Hart mean t some

feature of a legal norm th at identifies it as a legal norm.44 The function of

an auth oritative mark is to en able a n orm-subject to distinguish genuine

legal rules from imposters and thereby to recognize those rules that are

authoritative and binding on him. On Harts account, the authoritativemarks of a legal system are set out in the systems rule of recognition.

The simplest form of remedy for the uncertainty of the regime of primary

rules is the in trod uction o f what we sha ll call a r ule of recogn ition. This will

specify some feature or features possession of which by a suggested rule is

taken as conclusive af firmative indication tha t it is a r ule of the group to be

supported by the social pressure it exerts.45

The rule of recognition in the United States legal system, for example,

designates, inter alia, that all norms that have been duly enacted by Con-

gress under cond itions set out in Article I of the Con stitution are legally

valid norms. Any doubt or d isagreement regarding whether a n orm regu-

lating interstate commerce is a law of the system can be resolved by check-

ing to see whether the nor m bears the appropriate mark of auth ority, i.e.,

whether it has been duly enacted by Congress.

Marks of autho rity, therefore, allow complex societies to overcome the in-

forma tional problemsassociated with a regime of pure customary law. By des-

ignating those norms that are authoritative and binding, these marks

elimina te the need for people to resolve their disagreemen ts by engaging in

42. John Locke, TWO TREATISES OF G OVERNMENT, Ch apter 3 (C .B. Machph erson , ed., 1980)(1690).

43. Hart, suprano te 6, at 40.44. Id. at 95.45. Id. at 94.

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normative deliberation and debate. People may look to the mark to an swer

their q uestions abo ut which rules are legitimate and thus sidestep the prob-

lems tha t arise when each attempts to answer practical questions for himself.

We see tha t the funct ion o f a legal rule is no t simply to secure complianceby infor ming the norm-subject of his ob ligation s or righ ts. More accurately,

it is to do so in a way that eliminates the need for agents to engage in

normative deliberation about the appropriate course of conduct to resolve

their doubts or d isagreements. And legal rules are able to accomplish this

function because they bear the mark of authority set out in their systems

rule of recognition.

Because it falls to autho ritative marks to eliminate th e need fo r delibera-

tion, it fo llows tha t no mark can serve this function if the on ly way someone

could identify it as a mark were via deliberat ion. And if such a mark couldno t serve its function , it follows tha t a rule that bore such a mark could not

serve its function. Such a rule could not make the right sort of practical

difference: There would be no way for an agent to determine his legal

obligations or rights without addressing the question that legal rules were

meant to obviate, namely, What rules should I follow?

If the above ana lysis is cor rect, then inclusive legal positivism is inconsis-

tent with th e epistemic-guidan ce function of lega l rules. For in clusive legal

positivists believe that the rule of recognition can set out criteria of legality

that refer to a norms moral properties. Since the rule of recognition setsout the authoritative marks of the legal system, inclusive legal positivists

permit mora l properties to be marks of authority. Yet mo ral properties are

useless as marks of authority precisely because they canno t be iden tified as

marks independently of normative argument. It follows, therefore, that

rules that bear such marks cannot epistemically guide conduct, because

they are incapable of making the right sort o f difference to practical reason -

ing: Agents cann ot learn of their obligations or rights without answering the

question tha t such rules are supposed to obviate.

Exclusive legal positivists do no t fall prey to this objection . For the on lymarks of authority they accept are pedigree ones, that is, those that relate

to a rules social source. Because ped igree marks can be identified inde-

pendently of deliberation on the merits, rules tha t bear such marks can be

identified as legal rules without deliberating. Hence, legal rules that have

social sources are capable of making the right sort of practical difference,

whereas rules tha t lack such sources are not.

IV. RESPONSES TO ARGUMENTPART TWO

A. Direct and Indirect Guidance

The above argument is essent ially the one I presented in my original art icle.

As Jules Coleman has pointed out, ho wever, the argument is incomplete.46

46. SeeJules L. Co leman, THE PRACTICE O F PRINCIPLE (forth coming 2000).



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The missing step occurs at th e end where I claim th at if an authoritative

mark can only be identified a s a mark by deliberating abo ut the merits of

following the rule, then an agent would be un able to identify the rule as a

legal rule witho ut deliberating about th e merits of fo llowing the rule. Thisassumes that an agent can identify a rule as a legal rule only through its

mark, an d surely this is false. There are many ways an agent can lear n about

the law: He can read lega l how-to boo ks, speak to crimina ls, con sult lawyers,

an d so on . Indeed, in most moder n legal systems, most citizens ha ve no idea

wha t their r ule of recognition is and hence h ave, at best, a partial knowl-

edge of the marks of authority. They do n ot a lways, and perh aps only rarely,

find the rules in the official way, i.e., by reference to the appropriate

marks.

Coleman expresses this point by distinguishing th e seman tic conceptionof the rule of recognition from the epistemic one.47 The seman tic con cep-

tion treats the rule of recognition as a membership test for a certain legal

system. The epistemic con ception, by con trast, treats the rule of recognition

as a procedure used by individuals to identify the law of that system.

According to Coleman, H art treated the rule of recognition a s a seman tic

rule: It sets out th e criteria of legality for a system. Coleman claims that

there is no reason to think that H art und erstood the rule of recognition

epistemically, as a rule of identification. The law may guide people even

though they do not learn of the law by applying their systems rule ofrecognition.

It is possible, therefore, for a mark to be identifiable as a mark only

through deliberation, and yet for someone to learn that a rule that bears

tha t mark is a legal rule without deliberating. Co nsider a situation in which

an agen t consults someone who m he takes to be a mora l expert and acts on

the basis of the advice provided. That agent will have been guided by the

rule without having deliberated himself. Coleman concludes that it is pos-

sible for an agent to learn of h is legal obligations or rights from rules that

are valid in virtue of their moral content without having to engage innor mative d eliberation and , h ence, to epistemically guide his conduct by

such rules.

It should be noted that Colemans objection does nothing to affect the

argum ent o f section I above, because, according to H art, judges are guided

by the rule of recognition. The r ule of recognition, after a ll, is a con vention

among judges to treat certain rules that bear certain features as authorita-

tive. Yet, Colema ns point is well-taken in the case of ordinar y citizens, for

the rule of recognition need no t be known, n or practiced, by the popula-

tion at large.Nevertheless, I do not think this objection is fatal to the argument in

section III above. To see th is, consider a compa rable scenario involving

theoretical authority. Suppose I feel ill and go see my doctor. After the

47. Coleman, suprano te 1, at 5.

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examina tion , my doctor says to me: My ad vice to you is to d o wha tever you

can to get better. Incredulous, I say to him: Wha t kind of advice is tha t?

H e replies, Medica l advice. I say to him: Well, sho uld I ta ke an y med ica-

tion? He replies: Only if it is medically appropriate. Feeling even sicker,I ask: Which medication is medically appropriate? H e replies: The one

tha t will restore you to health. I thank him and pay my bill on the way out.

Dazed and confused, I run into my friend Pete who also happens to be a

do ctor. I tell him th e advice my do ctor gave me an d h e says, Well, given the

way you look, I would say tha t his medical advice is that you should take

Pen icillin. I say to h im: H ow do you know tha t th is is ad vice? Well, Pete

responds, tha t is what is medically appropriate for you to d o.

In this vignette, one gets the sense that it is not my doctor who has advised

meit is Pete who has. The reason is clear: P eople go to doctors becausethey believe that d octors know considerably more abo ut medicine than th ey

do and are able to apply that knowledge in dispensing advice. In my

doctors case, he did not supply me with any information that would be

useful in making me feel better; in fact, everything he told me I knew before

I entered h is office. The one who truly added value was Pete. H e applied

his superior knowledge to my situation and his advice reflected th is knowl-

edge. When I acted on his interpreta tion of my do ctors advice, I was in fact

acting o n P etes advice.

This does not mean that in order for me to be guided by my doctorsadvice I ha ve to hear the advice directly from my doctor. If the d octor calls

my wife and tells her that I should take penicillin four times a day for ten

days and I h ear th is advice from my wife, I am surely being guided by my

doctors advice if I follow through on this regimen. As long as my wife do es

not try to interpret the doctors advice by using her own medical beliefs, I

will be guided by my doctors, not my wifes, advice.

Returning to the case of legal authority, we can now see the importance

of making sure that legal rules be identifiable in a way tha t does no t require

normative deliberation . For if deliberation were necessar y, someone wouldhave to deliberate, and then theywould be playing the role that legal

authorities are supposed to play, namely, obviating the need for all others

to engage in deliberation and debate by designating those rules that are

binding.

As with the comparable case of theoretical authority, it is unn ecessar y tha t

an agent learn that a rule is a legal rule directly from the auth oritative mark.

It is enough if the agent learn s this informa tion from someone who learned

it from the mark or learned it from ano ther who learned it from the mark,

and so on. O nce the process of identification is con taminated by someo nesdeliberation, however, the chain of authoritative guidance is broken and

the d eliberato r plays the ro le of the pra ctical auth ority.

Accordingly, we can distinguish between two ways in which an agent

might become informed about the content o f a ruleone d irect, the other

indirect. An agent is directly infor med about the con tent o f a rule when he



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learns this infor mat ion from the rule itself witho ut engaging in deliberation

on the merits. An agent is ind irectly informed about the con tent of a r ule

when he learns this informa tion from someon e who was either d irectly or

indirectly informed about th e content o f the rule.Likewise, we can distinguish between direct and indirect epistemic guid-

ance. An agent is directly epistemically guided by a rule when he confo rms

to such a rule as a result of being directly informed about the rules content.

An agen t is ind irectly epistemically guided by a rule when he conforms to

such a rule as a result of being indirectly infor med about the rules content.

Thanks to Colemans objection, the argument of section III above can

now be formulated more precisely. The problem with inclusive legal posi-

tivism is that it countenances rules that are incapable of either directly or

indirectly epistemically guiding conduct. For if an auth oritative mark couldno t be identified except via deliberation, then in order for a rule that bore

such a mark to be identified as a legal rule, someone would have to engage

in the requisite deliberation , and this would break the chain of authoritative

guidance.

B. Partial Guidance

I have claimed that a rule is capab le of epistemically guiding cond uct on ly

if an agent is capable of learning of his obligations or rights from the rule

without engaging in deliberation. Waluchow argues that this requirement

is too strong.48 There are cases, he believes, in which a rule is capable of

guiding conduct even though the agent must engage in some deliberation

in order to learn of his obligations or rights.

Waluchow makes his case by reconsidering Razs arbitrato r example.49

Suppose that two parties are in the midst of a dispute and submit to

arb itration in order to resolve it. Each side presents its best argument as to

why it ought to win. Each points to a different rule and claims that its rule

is valid and the others is not. Assume that after hearing both sides the

arbitrator tells them tha t the valid rule is the fa ir one.

Such a decision is no t likely to be very helpful, but, as Waluchow points

out, it is no t useless. For each par ty now kno ws tha t the q uestion th at it must

face is wheth er its favored rule is fair. The arb itrator has provided partial

guidance in that he has potentially narrowed the scope of their dispute.

They no longer need decide, for example, whether efficiency trumps fair-

ness or vice versathey now know th at fairness trumps efficiency. To be

sure, the parties migh t nevertheless disagree about which r ule is fair, an d so

their d ispute will not be over. B ut given that their d isagreement has n ow

shr unk, they may be in a better position to settle their differen ces. And it is

possible that the parties do not disagree about whether the plaintiffs rule

48. Waluchow, supranote 9, at 6264.49. SeeJoseph Raz, Authori ty, Law and Morali ty, in ETHICS IN THE PUBLIC DOMAIN 219 (1994).

152 SCOTTJ. SHAPIRO


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is fair, and , con seq uently, the arb itrator s rule will have completely resolved

their con flict.

The dependent reasons further recourse to which would normally defeat the

normal goal of arbitration (i.e., to settle a dispute) are only the contested

reasons under dispute. Should other dependent reasons enter the picture,

then it is not at all clear that the (normal) goal of arbitration would be

thwarted. There could, e.g., be complete agreement among the parties on

what the fairest decision is, but d isagreement about whether th e agreed facts

of relative fairness are sufficient to outweigh, e.g., reasons of inefficiency,

loyalty or compassion. A directive tha t makes reference to fairness, and who se

understanding or interpretation therefore req uires appeal to agreed m oral

reasons of fairness, can therefore b e q uite serviceable in accomplishing the

goals of th is particular case of arbitration.50

Waluchow spends much of his article attempting to show why the phe-

nomenon of partial guidance is a counterexample to Razs theor y of autho r-

ity. H e claims that h is argument aga inst Raz applies equally to me.51 This is

unfortunate because there a re several importan t differences between the

arguments Raz and I offered. Instead of specifying the differences, let me

consider whether th e arbitrato r example would constitute an effective reply

to the a rgument I presented.

Let us distinguish between complete and partial epistemic guidance. A

norm completely epistemically guides when the a gent is able to learn of h is

obligations or rights from the n orm without engaging in any deliberation.

A norm partially epistemically guides when the agent is able to learn of h is

obligations or rights with th e norms help, but must engage in some delib-

eration in ord er to complete the inference.

Presumably, Waluchow believes that I a m committed to saying tha t th e

arbitrators decision cann ot guide conduct. Why? Because, o n the view I

have been advocating, a rule or decision cannot guide conduct unless it

completely epistemically guides conduct. H owever, Waluchow believes, th e

arbitrators decision can guide conduct even though the parties might still

have to engage in some deliberation in ord er to learn which rule is valid. It

can guide, in oth er words, as lon g a s it partially epistemically guides.

I do not deny, however, that the arbitra tors decision is capab le of guiding

cond uct. For it is simply not true th at, in the arbitration case, the parties

must deliberate in ord er to d etermine th e content o f the a rbitrators deci-

sion. I f the a rbitrato r tells the pa rties tha t the valid rule is the fa ir one, th en

the part ies know tha t they are obligated to act fa irly. The decision is capable

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