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12 Can. J. L. & Jurisprudence 17 (1999)
Patrolling the Boundaries: Inclusive Legal Positivism and the Nature of Jurisprudential Debate

handle is hein.journals/caljp12 and id is 19 raw text is: Patrolling the Boundaries: Inclusive Legal Positivism and the Nature of Jurisprudential Debate Brian Bix Legal positivism, like breakfast cereal, seems to come in a wide variety of brands, with modest variations in the ingredients. Each brand offers slightly different promises as to the benefits of choosing it over its competitors. The question for the tired morning consumer is whether anything important is at stake in the choice,' or whether he or she should just choose whatever is handy or on sale that month. In this article, I will consider some of the debates within legal positivism, and some of the disputes between legal positivism and its critics, as a means of exploring some more general issues regarding the process of theorizing about law. In dis- cussing the internal debates within legal positivism, I will focus on the debate between inclusive2 and exclusive3 forms of positivism, though there are numerous other, if lesser known, intra-group squabbles to be found, which are also of interest and warrant attention.! In the background of most jurisprudential debates, usually but not always unstated, is the question of what kinds of claims the disputants are making, whether the opponents are in fact in substantive disagreement or simply talking past one I am grateful to Jules Coleman, Brian Leiter, Linda Meyer, Thomas Momrwetz, and Scott Shapiro for helpful comments on earlier drafts of this article. 1. In a recent article, Frederick Schauer offers the following comment regarding one characterization of the inclusivelexclusive legal positivism debate, before going on to give a different charac- terization of the debate and what is at stake in it: As I have just presented it, this debate is likely to confirm the worst fears of large number of contemporary American law professors, the fear that analyticaljurisprudnce in general, and the debates about legal positivism in particular, are the largely irrelevant preoccupation of a small group of socially unaware but philosophically obsessed pedants, many of whom are English and most of whom are dead. F Schauer, Positivism Through Thick and Thin in B. Bix, ed., Analyzing Lm: New Esays in Legal Theory (Oxford: Clarendon Press, 1998) 65 at 69. 2. The same approach goes under other names including incorporafionism, negative positivism. and soft positivism. Among its proponents are D. Lyons, Principles, Positivism and Legal Theory (1977) 87 Yale L. J. 415; P. Soper, Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute (1977) 75 Mich. L. Rev. 473; J.L. Coleman, Negative and Positive Positivism (1982) 11 J. Legal Stud. 139, reprinted in Markets, Morals and the Law (Cambridge: Cambridge University Press, 1988) 3; NV. J. NValuchow, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994); see also H. L. A. Hart, Postscript in P-A. Bulloch & J. Raz, eds., The Concept ofLav, 2nd ed. (Oxford: Clarendon Press, 1994) 238 at 250-54. 3. See J. Raz, The Authorily of Law: Essays on Lmv and Morality (Oxford: Clarendon Press, 1979) at 37-77; J. Raz, Ethics in the Public Domain: Essays in the Moralithy of Lmv and Politics (Oxford. Clarendon Press, 1994) at 210-19, 287-92; see also SJ. Shapiro, The Difference That Rules Make in B. Bix, supra note 1 at 56-62; SJ. Shapiro, On Hart's Way Out (1998) 4 Legal Theory 469. 4. For example, Frederick Schauer has suggested that legal positivism should turn its back on one of the most central and original parts of ILL.A. Harts legal theory: the emphasis on the internal perspective. See F. Schauer, Critical Notice: R. Shiner, Norm and Nature (1994) 24 Can. J. Phil. 495 and F. Schauer, Positivism Through Thick and Thin. supra note 1. Canadian Journal of Law and Jurisprudence Vol. XII, No.1 (January 1999)

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