1. For a survey of the more contemporary versions of natural law theory, see George, Robert P., ed., Natural Law Theory: Contemporary Essays (Oxford: Clarendon Press, 1992)Google Scholar.

2. A glance at the more recent literature shows a number of articles defending Hart and inclusive legal positivism against criticisms made by exclusive legal positivists such as Shapiro, Leiter and Dare. For instance: W.J. Waluchow, “Authority and the Practical Difference Thesis” (2000) 6 Legal Theory 45; Kenneth Einar Himma, “H.L.A. Hart and the Practical Difference Thesis” (2000) 6 Legal Theory I; Matthew Kramer, “How Moral Principles Can Enter Into the Law” (2000) 6 Legal Theory 83. These are attempts to defend a Hartian position from criticisms made by exclusive legal positivists such as Scott Shapiro in “On Hart’s Way Out” (1998) 4 Legal Theory 469.

3. In the “Postscript” to The Concept of Law, 2nd ed. (Oxford: Oxford University Press, 1994), Hart deals explicitly with criticisms Dworkin makes in Law’s Empire (Cambridge, MA: Harvard University Press, 1986) of the positivist conception of legal theory, and clarifies his own view of the nature of legal theory and legal positivism.

4. The following articles examine, to various degrees, the nature of legal theory: Brian Leiter, “Realism, Hard Positivism, and Conceptual Analysis” (1998) 4 Legal Theory 533; Michael Moore, “Hart’s Concluding Scientific Postscript” (1998) 4 Legal Theory 301; Stephen R. Perry, “Hart’s Methodological Positivism” (1998) 4 Legal Theory 427; Gerald J. Postema, “Jurisprudence as Practical Philosophy” (1998) 4 Legal Theory 329; Joseph Raz, “Two Views of the Nature of the Theory of Law” (1998) 4 Legal Theory 249. The above articles by Leiter, Perry and Raz, along with other articles dealing either directly or indirectly with Hart’s “Postscript”, also appear in Coleman, Jules, ed., Hart’s Postscript: Essays on the Postscript to The Concept of Law (Oxford: Oxford University Press, 2001)CrossRefGoogle Scholar.

5. Raz, Ibid, at 257.

6. Ibid, at 256.

7. Ibid, at 266.

8. Leiter, supra note 4. In particular, look at his last section entitled “The Limits of Conceptual Analysis” at 544-47.

9. Ibid, at 546.

10. The distinction between “substantive” and “methodological” positivism was made by Perry in “Hart’s Methodological Positivism”, supra note 4 at 427. He writes, “[sjubstantive legal positivism is the view that there is no necessary connection between morality and the content of law. Methodological legal positivism is the view that legal theory can and should offer a normatively neutral description of a particular social phenomenon, namely law.” Ibid. He goes on to add that “Methodological positivism holds, we might say, not that there is no necessary connection between morality and law, but rather that mere is no connection, necessary or otherwise, between morality and legal theory.” Ibid.

Overall, this is a good distinction to make since it illustrates one ambiguity in speaking about the connection between law and morality (or the lack thereof). In one sense, I could be speaking about the connection between the practice of law and moral evaluation (substantive legal positivism). In another sense, I could be speaking about the practice of constructing a theory of law and moral evaluation (methodological positivism). However, when Perry describes methodological positivism as offering a “normatively neutral description” of law, this excludes from the category of methodological positivists those invoking a “descriptive-evaluative method” like W.J. Waluchow. A descriptive-evaluative approach involves an appeal to meta-theoretic norms (like predictive power, simplicity, comprehensiveness, etc.), and thus such descriptions are “morally neutral”, but not “normatively neutral.” And Perry himself acknowledges that the “descriptive-evaluative method” is the “most straightforward” understanding of methodological positivism (see Perry, ibid, at 436). The essence, it seems to me, in being a methodological positivism would be to oppose a position like Dworkin’s which states that any interpretation of the law (or any description or concept of law) must involve an appeal to principles of political morality in order to put legal practice it its best (morally best) light. Thus, when I use the term “methodological positivism,” I will mean it purely in terms of suchin this more restricted sense to apply to those who believe legal theory construction ought to be separate from the appeal to moral norms in order to morally justify the theory (which, I think, Perry himself more strictly means).

11. Leiter, supra note 4 at 546.

12. Ibid, at 546-47.

13. Ibid, at 547.

14. Dworkin, supra note 3 at 230.

15. Dworkin describes these two dimensions in Law’s Empire, supra note 3 at 230-32 and A Matter of Principle (Cambridge, MA: Harvard University Press, 1985) at 143-45.

16. Dworkin argues for the stronger claim (that a methodological positivistic account of legal theory is impossible) rather than the weaker claim (that a methodological positivistic account of legal theory is inadequate or insufficient) by emphasizing the connection or interdependency (and, thus, inseparability) between the two dimensions. According to Dworkin, both dimensions are not distinct since “one may show the text in a better light because it fits more of the text or provides a more interesting integration of style and content.” (Dworkin, supra note 3 at 231). Since there is a sense in which each dimension involves putting the object in its best possible light, Dworkin believes that conceptually each dimension is inseparable. But, as we shall see shortly, positivists such as Waluchow make a convincing case that we can conceptually and practically separate the two dimensions by distinguishing the kinds of norm that are appealed to in each case.

17. Waluchow, W.J., Inclusive Legal Positivism (Oxford: Clarendon Press, 1994)Google Scholar at 21.

18. Perry, supra note 4 at 429 and 436.

19. Perry states that there are “serious problems with the descriptive-explanatory reading of Hart’s methodology.” Ibid. at 436.

20. Ibid. at 438.

21. Ibid, at 439.

22. Ibid. at 453.

23. Hart, H.L.A., The Concept of Law (Oxford: Clarendon Press, 1961)Google Scholar at vii.

24. See ibid.

25. According to Perry, it is because Hart is not primarily interested in explanatory power in a scientific sense (which is more purely descriptive in its approach) but, rather, as a way to elucidate a concept, that we cannot understand his approach to legal theory purely in terms of such metatheoretic norms like simplicity, comprehensiveness, etc. See Perry, supra note 4 at 437.

26. Hart, supra note 23 at 79.

27. Ibid, at 13. The first question is how law differs from and is related to orders backed by threats. The second question is how legal obligation is different from and related to moral obligation? The third question are rules and to what extent law is an affair of rules? Because these issues are quite distinct, Hart acknowledges that a definition of law would never suffice. Thus, instead, he aims to “isolate and characterize a central set of elements which form a common part of the answer to all three.” Ibid. at 16.

28. Ibid, at 204-05. Although Hart uses the word “concept” in the above quotation, I think, more accurately he should be speaking of conceptions, accounts or elucidations of the concept of law.

29. Of course, for Bentham, such an appeal to the utility of a theory is an appeal to morality (since morality, properly understood, is utilitarianism). Thus, it would seem that from Bentham’s perspective, legal theory itself should involve an appeal to moral considerations, properly understood. What this shows is that whether legal theory is morally neutral or not does, at least to some extent, depend on one’s conception of the nature of morality.

30. In the “Postscript” to second edition of The Concept of Law, Hart does explicitly endorse a kind of methodological positivism, but he is ambiguous. For instance, he states that his account is “descriptive in that it is morally neutral and has no justificatory aims: it does not seek to justify or commend on moral or other grounds the forms and structures which appear in my general account of law….” (Hart, supra note 3 at 240). Certainly, Hart is saying that he is not attempting to morally justify legal practice or his theory of law. This certainly distinguishes Hart’s account of legal theory from Dworkin’s or Perry’s rejection of methodological positivism. But does this show whether Hart is more aligned with a purely meta-theoretical approach like Waluchow’s or the quasi-pragmatic approach like Raz or Leiter? Taken literally, Hart would be distinguishing himself from both, since he is claiming that his approach to legal theory has “no justificatory aims” and involves no appeal to “other grounds” to justify or commend his account. This must be an overstatement, since any attempt to provide arguments or reasons for a position is an attempt to justify or commend such a position. But taken in its context (and, I think, in its spirit), this quotation should only be read as an explicit statement of his opposition to Dworkin’s (and any Dworkin-like) approach to legal theory, and not as a literal account of his own approach.

31. By “classical pragmatism”, I mean the pragmatism of James, Dewey and Peirce. Of course, there is a significant difference between James’ and Dewey’s version of pragmatism and the pragmatism of Peirce. While Peirce restricted his pragmatism to an account of the meaning of concepts (i.e., pragmatism was understood simply as a theory of meaning), James and Dewey understood pragmatism as a theory of meaning and a theory of truth. Because of this difference, I will understand pragmatism here as simply a theory for clarifying the meaning of a concept.

32. Dyzenhaus, David, Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (Oxford: Clarendon Press, 1991)Google Scholar at 269.

33. See also Gustav Radbruch’s “Five Minutes of Legal Philosophy” in Rechtsphilosophie, 8th ed. by Erik Wolf & Hans-Peter Schneider, trans. Stanley L. Paulson (Stuttgart: K.F. Koehler Verlag, 1973). 327-29. Radbruch presents his famous attack on legal positivism based on an argument for its immoral consequences in legal practice.

34. Hart presents a good historical overview of the reasons Bentham and Austin give for the separation of law and morality in his 1958 article, “Positivism and die Separation of Law and Morals” originally published in the Harvard Law Review [(1958) 71 HLR 593], and later collected in J. Feinberg & H. Gross, eds., Philosophy of Law (Encino, CA: Dickenson Publishing Company, 1975) at 40 and subsequent editions. For a more contemporary example, see Frederick Schauer’s article “Positivism as Pariah” in George, Robert P., ed., The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996)Google Scholar where he argues that the adoption of legal positivism is a potential solution to the excessive compliance of courts in unjust legal systems.

35. James, William, “Abstractionism and ‘Relativismus’” in Pragmatism and The Meaning of Truth (Cambridge, MA: Harvard University Press, 1978)Google Scholar at 301.

36. We have, to name a few, two versions of legal positivism (inclusive or ‘soft’ versus exclusive or ‘hard’ legal positivism) that distinguish themselves from contemporary versions of natural law theory, as well as Dworkin’s interpretation theory. Both versions of legal positivism argue that there is no necessary connection between law and morality; however, inclusive legal positivism argues that the connection between law and morality is contingent, while exclusive legal positivists argue that there is no connection between law and morality.

37. See Dworkin’s, Ronald Freedom’s Law: The Moral Reading of the American Constitution (Oxford: Oxford University Press, 1996)Google Scholar.

38. And Hart’s appeal to the account that best “furthers inquiry” only succeeds in showing or legitimizing the direction he would like to go (rather than really arguing for which direction one ought to go in). His account of law in terms of primary and secondary rules seems to be preferable because it provides us with a way of distinguishing law from (and describing its normativity without reference to) both morality and coercion. But why is this desirable in itself? All this seems to do is to legitimize specialization in the field of legal philosophy, but it does not show why specialization here is a good and useful thing. And he certainly does not show why specialization, at the cost of an extremely formal account of the normativity of law is preferable to more substantive accounts of the normativity of law.

39. Of course, the promise of such an appeal may also depend on what it means to say morality is objective. For a recent collection of articles on the different senses of “objectivity” in both areas of law and morality, see Leiter, Brian, ed., Objectivity in Law and Morals (Cambridge: Cambridge University Press, 2001)Google Scholar.