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10 LEG 1 (2004)

handle is hein.journals/legthory10 and id is 1 raw text is: Legal Theory, 10 (2004), 1-17. Printed in the United States of America Published by Cambridge University Press 0361-6843/04 $12.00 + 00 INCORPORATION BY LAW Joseph Raz Balliol College, Oxford, and Columbia University The truism that launched many theories about the nature of law-that law is a social institution-leaves, not surprisingly, many questions unanswered. One of the most important among them is the question of whether social institutions or more generally social practices can be understood in entirely nonevaluative terms.2 Not penetrating to the same degree the heart of our understanding of law and of normative phenomena generally is another question left open by the truism, a question much discussed in recent years, namely, whether moral principles can become part of the law of a country by incorporation.3 Though different, it may be thought that the two are interconnected in certain ways. My purpose here is to examine the question of how the law can be in- corporated within morality and how the existence of the law can impinge on our moral rights and duties, a question (or questions) which is a central aspect of the broad question of the relation between law and morality. My conclusions cast doubts on the incorporation thesis, that is, the view that moral principles can become part of the law of the land by incorporation. 1. This article includes material presented as the first of three Storrs Lectures at Yale in 2003. 2. We lack a general term to refer collectively to all the concepts characteristic of practical thought. These include concepts belonging to virtue and character-related concepts (courage, etc.), responsibility-related concepts (excuses, etc.), value concepts (admirable, etc.), norma- tive concepts (ought, etc.), and reason concepts (rational, etc.). In previous times descriptive and factual were commonly used to designate those concepts that are not specifically prac- tical. This, however, mniscasts descriptions. (This is John is not a description of anything yet is supposed to be a descriptive sentence.) Designating rionevaluative propositions factual implies that there are no evaluative facts, which is false. I will use evaluative and normative interchangeably to refer to all of them, as well as using them more narrowly to refer to items of the subcategories indicated above. 3. That the idea is consistent with Hart's account of the law was intimated by him in his review of LON FULLER, THE MORALITY OF LAw in Hart, 78 HARVARD L. REv. 1281 (1965), repr. in H.L.A. HART, ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 361 (1983), and reiterated in the postscript to THE CONCEPT OF LAw 250 (1961), though neither time did Hart stop to explore the meaning and implication of the idea; see David Lyons, Principles, Positivism and Legal Theory, 87 YALE L.J. 415 (1977), at 423-424, and Philip Soper, Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute, 75 MICHIGAN L. REv. 473 (1977). The point was embraced by Jules Coleman, Negative and Positive Positivism, 11 J. LEGAL STUD. 139 (1982), and developed and defended at length by him in JULES COLEMAN, THE PRACTICE OF PRINCIPLE (2001). See, for a general discussion of the view, Kenneth E. Himnmna, Inclusive Legal Positivism, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAw (J. Coleman & S. Shapiro, eds., 2002). 1

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