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24 Law & Phil. 1 (2005)

handle is hein.journals/lwphil24 and id is 1 raw text is: Law and Philosophy (2005) 24: 1-45

(Accepted 5 December 2003)
While every positivist accepts that there can be legal systems without
moral criteria of legality, exclusive and inclusive positivists disagree
on whether there can be legal systems with moral criteria of legality.
Exclusive positivists accept the Sources Thesis, according to which it
is a conceptual truth that the existence and content of law can always
be determined by reference to its sources without moral argument.
Inclusive positivists accept the Incorporation Thesis, according to
which there are conceptually possible legal systems in which the
legality criteria incorporate substantive moral norms in the fol-
lowing sense: satisfaction of those norms is a necessary or sufficient
condition for a proposition to count as law.
The Incorporation Thesis appeals to many positivists because it
seems to provide the most perspicuous positivist framework for
understanding the role that moral principles play in judicial
decision-making in developed legal systems. In particular, the in-
clusivist framework seems to permit a more natural explanation
*Portions of this essay were presented at Yale Law School as part of the
program for the 7th Annual Analytic Legal Philosophy Conference. I am
indebted to the following persons for helpful criticisms, comments, ques-
tions, and suggestions: Larry Alexander, Jules Coleman, Anthony Duff,
John Gardner, Leslie Green, Mark Greenberg, Douglas Husak, Barbara B.
Levenbrook, David Lyons, Christopher Morris, Gerald Postema, Scott
Shapiro, Roger Shiner, Nicos Stavropoulos, Jeremy Waldron, and Wilfrid
Waluchow. I am also indebted to subsequent correspondence with Brian
Bix, Leslie Green, Stephen Perry, and Joseph Raz. I am also grateful to
Ronald Moore, Laurence BonJour, Arthur Fine, Marc Lange, and Jean
Roberts for their comments on a much earlier version of this paper. I am
especially indebted to Matthew Kramer for his detailed and insightful
comments on an earlier version of this essay and for a particularly com-
pelling criticism that forced me to rethink my initial approach to the issues.

© Springer 2005

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