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22 Ratio Juris 1 (2009)

handle is hein.journals/raju22 and id is 1 raw text is: Ratio Juris. Vol. 22 No. 1 March 2009 (1-23) The Structure of Social Practices and the Connection between Law and Morality* GIORGIO BONGIOVANNI, ANTONINO ROTOLO, CORRADO ROVERSI, AND CHIARA VALENTINI Abstract. In his work, Jules Coleman has held that the rule of recognition, if conceived of as a shared cooperative activity, should be the gateway through which to incorporate moral constraints on the content of law. This analysis, however, leaves unanswered two important questions. For one thing, we do not know when or even why morality becomes a criterion of legality. And, for another thing, we still do not know what conception of morality it is that we are dealing with. In this article, we will attempt to clarify in greater depth what relations there are between the social practice of law and morality. We will thus see how the cooperative nature of social practices imbues law with a moral force, and how this makes it possible to establish a weak connection between law and morality: To see this, we will need to single out some basic features of cooperative social practices, thus setting out a suitable framework for the view just mentioned. 1. Introduction: Inclusivism, Social Practices, and Morality One of the best-known and debated contributions that Jules Coleman has made to legal theory lies in his negation of the separability thesis, a thesis regarded as essential to legal positivism (Coleman 2001a, 2001b). The significance of this negation is that we must recognize the role that moral principles can play in determining the validity of legal norms, which is to say that morality can be a condition of legality, so that the legality of * An earlier version of this paper was presented at the conference Inclusive Legal Positivism and Beyond: The Perspective of Jules Coleman (University of Bologna, 12-13 May 2008). We would like to thank Jules Coleman and the other participants for their helpful comments. This paper forms part of a larger inquiry into the role of morality in social practices. Some of the theses presented here have also been discussed at seminars held at the University of Kiel, Germany: many thanks to Robert Alexy and the Kiel group of legal philosophy for their valuable comments, too. D 2009 The Authors. Journal compilation D 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden 02148, USA.

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