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*


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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