The architecture of jurisprudence.

• Author: Coleman, Jules L.
• Position: Company overview

INTRODUCTION I. THE CONVENTIONAL WISDOM AND THE SEPARABILITY THESIS A. Its Place in the Conventional Wisdom B. Its Claims 1. The Coherence of Immoral Law 2. The Existence Conditions of Law II. ASSESSING THE CONVENTIONAL WISDOM: THE SEPARABILITY THESIS A. Is the Separability Thesis Adequate To Distinguish Positivism from Natural Law? The Possibility of Immoral Law 1. Making Sense 2. A Revisionist Concept 3. A Methodological Suggestion 4. Legality as a Normative Notion B. The Internal Point of View and the Law's Point of View 1. Adopting the Law's Point of View 2. The Internal Point of View and the Law's Point of View C. Is the Separability Thesis Adequate To Distinguish Positivism from Natural Law? The Existence Conditions of a Legal System D. Is the Separability Thesis Essential to Legal Positivism? III. THE METHODOLOGY OF JURISPRUDENCE A. In What Sense Is Normative Jurisprudence Normative? B. Do Substantive and Methodological Jurisprudential Views 'Travel Together'? IV. THE TRUTH ABOUT POSITIVISM AND THE SEPARABILITY THESIS A. Judges Are People Too B. Morality and Law's Place C. From Law to Positivism About Law D. Extending the Argument V. WHAT ABOUT INCLUSIVE LEGAL POSITIVISM? A. Exclusive Positivism and Natural Law: Redux B. Exclusive and Inclusive Legal Positivism: Redux 1. The Argument for Inclusive Positivism 2. The Argument Against Exclusive Positivism VI. IT IS ABOUT THE METAPHYSICS--MAYBE A. Meet the New Boss, Same as the Old Boss! B. There Is Something Happening Here! C. A Brand New Day 1. Semantics and Meta-Semantics 2. It Is Always About Everything-All the Way Down VII. A NEW BEGINNING A. Legal Content and Legal Semantics B. Hume's Problem C. Directives and Reasons D. Law's Place INTRODUCTION

Two marks of a mature field of inquiry are that its central problems are well-formulated and that its conventional wisdom is sound. Even in the most mature fields, however, the conventional wisdom can sometimes be misleading and the central problems poorly cast. Unfortunately, this is the state of affairs in analytic jurisprudence. Progress can be made only if much of the conventional wisdom is displaced and its central questions are reframed.

This Article does just that. It characterizes two central tenets of the conventional wisdom in jurisprudence and argues that both must be discarded if progress in jurisprudence is to be made. Having discarded both tenets of conventional wisdom, the Article then demonstrates the progress that can be made and indicates the direction in which prospects for further progress have been enhanced. (1) We begin by loosening the grip of conventional wisdom.

1. THE CONVENTIONAL WISDOM AND THE SEPARABILITY THESIS

   1. Its Place in the Conventional Wisdom

      Though most academic lawyers are unschooled in the finer points of contemporary jurisprudence, nearly all are confident of their ability to distinguish legal positivism from natural law theory. They tell us that natural lawyers assert and positivists deny the existence of necessary connections between law and morality; that positivists endorse and natural lawyers reject what I have termed 'the separability thesis'. (2) Academic lawyers may even tell us that legal positivism is defined by its commitment to the separability thesis and natural law by its rejection of it. Finally, they may say that, among positivists, there has been no more ardent proponent of the separability thesis than H.L.A. Hart.

      There is a difference between the claim that the separability thesis is compatible with legal positivism and the claim that it is essential to it. Claims are compatible if they all can be true at the same time, and they are incompatible otherwise. In contrast, were the separability thesis essential to legal positivism, then it would have to be true were positivism true.

      The separability thesis would suffice to distinguish legal positivism from natural law theory were it compatible with one of them--positivism--but not the other--natural law theory. Thus, the separability thesis need not be essential to legal positivism in order for it to distinguish positivism from natural law theory.

      At the same time, the separability thesis could be essential to legal positivism yet fail to distinguish positivism from natural law theory. Depending on how all these views are to be formulated precisely, the separability thesis might turn out to be compatible with natural law theory despite being essential to positivism. In that case, its being essential to legal positivism would not be enough to distinguish legal positivism from natural law theory. (3)

      Taken together, these considerations demonstrate that the conventional wisdom regarding the separability thesis actually consists in the conjunction of three related but nevertheless quite distinct claims. The first is that the separability thesis is essential to legal positivism. The second is that the separability thesis distinguishes legal positivism from natural law theory. The third is that the separability thesis distinguishes legal positivism from natural law theory because it is both essential to legal positivism and incompatible with natural law theory. Together, these claims comprise the conventional wisdom regarding the place of the separability thesis in jurisprudence. This much is conventional. Whether it is wisdom is an entirely different matter.

   2. Its Claims

      i. The Coherence of Immoral Law

      In order to assess the conventional wisdom, we need first to settle on an interpretation of the separability thesis. Unfortunately, this is easier said than done--a striking fact given how influential the separability thesis has been. Part--though not all--of the problem is that whereas the separability thesis is often taken to be a claim about the conditions of legal validity--that is, the conditions that must be satisfied in order for a norm to count as among a community's laws--it has also been taken to be a claim about the existence conditions of legal systems--that is, the conditions that must be satisfied in order for a system of rules (or norms) regulating affairs to count as a legal system. (4) The greater part of the problem is that in both cases, the claim that the thesis makes is open to several different and by no means equally plausible interpretations, few of which have been explicitly articulated and fewer still adequately defended.

      The truth is that positivists have no one to blame but themselves for much of the confusion that has grown up around the separability thesis. In many ways, the main culprit may well be H.L.A. Hart, no doubt the most prominent positivist of the modern era who, as Leslie Green has correctly observed, endorsed a particularly broad interpretation of it. (5)

      Though Green is right both to attribute to Hart a promiscuous interpretation of the separability thesis and to criticize him for it, there is no question that Hart emphasized a much narrower formulation of the separability thesis owed originally to Austin. As Austin put it, "The existence of law is one thing; its merit or demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry." (6)

      The claim that the 'law is one thing, its merit or demerit another' calls attention to the fact that valid laws can be either morally estimable or reprehensible: their moral character neither settles their legal status nor is settled by it. Neither natural lawyers nor legal positivists dispute the latter claim, so the focus of the dispute has been on whether the morality of a norm settles, in whole or in part, the legal validity of a norm. The view typically associated with natural law theory is that even if the morality of a norm is not sufficient to establish its legal validity, a norm cannot count as law unless it meets an appropriate moral test--unless, that is, it satisfies (or at least is not incompatible with) relevant moral demands. The standard way to put this is to say that, for the natural lawyer, morality is a necessary condition of legal validity. Positivists reject this claim, and in so doing, they endorse the separability thesis--the claim that morality is not a necessary condition of legal validity.

      All this should be familiar enough, but even so, some slight but important modifications of the standard formulation of the separability thesis are required. The phrase 'conditions of legal validity' is so common and so much a part of jurisprudential discourse that it is easy to miss that the concept of legal validity is itself probably an artifact of jurisprudential theories and not a feature of law that such theories must explain or accommodate. (7) The concept of legal validity does not figure prominently, if at all, in many jurisprudential theories--Ronald Dworkin's most notable among them. (8)

      It is an important but overlooked point that it is sometimes difficult to distinguish concepts that are essential to legal practice--and thus which call for explanation--from those concepts that are theoretical constructs employed to help us explain legal practice. Fortunately, we do not have to settle the general matter here, nor even must we determine the category to which the concept of 'legal validity' belongs. It is enough for our purposes that we are able to reformulate the separability thesis in a way that does not invoke the concept of legal validity (so as not to beg any questions against views that do not avail themselves of it) while capturing the gist of the disagreement about its truth.

      Instead of formulating the separability thesis as a claim about the conditions of legal validity, we might express it in either of the following ways:

      (a) The concept of immoral law is coherent; or

      (b) Sentences asserting that a particular legal requirement or directive is immoral do not--for that reason alone--constitute contradictions.

      Again, the conventional wisdom is that natural law rejects the separability thesis, which means that it...