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).

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