6 LEG 1 (2000)

handle is hein.journals/legthory6 and id is 1 raw text is: 










Legal Theory, 6 (2000), 1-43. Printed in the United States of America
Copyright @ Cambridge University Press 1352-3252/ 00 $9.50



H.LA. HART AND THE

PRACTI CAL DI FFEREN CE TH ES S


Kenneth Enar Himma
University   of  Washington



In H.L.A. Hart's now  famous Postscript to The Concept of Law, I he embraced
the Incorporation  Thesis, according to which it is possible for a legal system
to have a rule of recognition that incorporates moral criteria of validity2 In
such legal systems, a norm must  satisfy certain moral conditions as either a
necessary or a sufficient condition for it to be legally valid. According to the
Incorporation  Thesis, then, the criteria of validity need not consist exclu-
sively of standards that  define validity in terms of  a norm's  source  or
pedigree.
  This  seemingly  modest  thesis has been  the  target of attacks from  all
theoretical quarters. Anti-positivists like Ronald Dworkin, for example, ar-
gue that the Incorporation  Thesis is inconsistent with the Separability The-
sis. Exclusive positivists argue that the Incorporation Thesis is inconsistent
with claims  about the role legal norms   play, or should play, in practical
deliberations. Joseph Raz, for example, argues that the Incorporation Thesis
is inconsistent with law's conceptual claim to legitimate authority On  his
view, law's claim to authority implies that the content of a legal norm must
be identifiable without recourse  to the dependent   reasons that justify it.
Since the content  of moral criteria of validity cannot be identified without
such recourse, the Incorporation  Thesis  is inconsistent with the nature of
legal authority3
  Morerecently,  Scott Shapiro arguesthat the Incorporation Thesisisincon-

I would like to thank Jules Coleman for his comments on this article and, in general, for his
remarkable kindness. Though he frequently disagrees with the views I choose to defend, he is
always there to help me develop my ideas in order to make them as plausible as possible-no
matter how much else he might have to do. I have known him for only a year but can say this
without the slightest exaggeration: No person has contributed more to my philosophical
development than Jules. IfI achieve anything worthwhile in this business, he deserves most of
the credit.
  1. H.L.A. Hart, THE CONCEPT OF LAw 185-86 (2nd ed., 1994). Hereinafter referred to as CL.
  2. Nevertheless, Hart had some reservations about the Incorporation Thesis. Hart, a skep-
tic about moral objectivism, believed that the Incorporation Thesis presupposes that moral
norms have an objective status and hence conditioned his acceptance of the Incorporation
Thesis on the truth of moral objectivism. See Kenneth Einar Himma, Incorporationism and the
Objectivity ofMoral Norms, 5 LEGAL THEORY415 (1999), for a discussion of Hart's worries on
this count.
  3. Joseph Raz, Authority, Law, and Morality, in Joseph Raz, ETHICS IN THE PUBLIC DOMAIN
(Oxford: Clarendon Press, 1994). Hereinafter referred to asALM.

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