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This document presents a defense of the thesis that the legality of a system of rules is dependent on its moral features, challenging positivist views that deny this connection. It formulates a moderate theory of law as an artifact that must perform a normative function, supported by its explanatory power through comparisons with other value-driven artifacts. The text also critiques traditional non-positivism for overstating this dependence and outlines the necessary features of legal systems that positivism struggles to explain.

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Atiq

This Element defends and clarifies the thesis that the legality of
a system of rules depends on its moral features. Positivists who
deny this dependence struggle to explain: (1) the traditional
classification of moral norms as a form of a priori law; (2)
judicial reliance on moral norms in legal discovery; (3) persistent
theoretical disagreement about intra-systemic, law-determining Philosophy of Law
facts; (4) why radically arbitrary or immoral schemes of social
organization represent borderline cases of law; and (5) why law,
like other artifacts, can be evaluated in a kind-relative sense
(“as law”). Meanwhile, traditional versions of non-positivism
overstate the dependence going further than the desiderata
warrant. A moderate theory is formulated: law is an artifact

Contemporary Non-Positivism
Contemporary
whose existence depends on adequately performing an
essentially normative function. The theory’s justification lies in
its explanatory power: a comparison with other “value-driven”

Non-Positivism
artifacts, such as artworks, proves vital for understanding legal
language, reasoning, and practice.

About the Series Series Editors

This series provides an accessible George Pavlakos
overview of the philosophy of law, University of
drawing on its varied intellectual traditions Glasgow
in order to showcase the interdisciplinary
dimensions of jurisprudential enquiry,
review the state of the art in the field,
Gerald J. Postema
University of
North Carolina
Emad H. Atiq
and suggest fresh research agendas for at Chapel Hill
the future. Focussing on issues rather than Kenneth M.
traditions or authors, each contribution Ehrenberg
seeks to deepen our understanding of University of Surrey
the foundations of the law, ultimately with
a view to offering practical insights into
some of the major challenges of our age.

Cover image: Jane Couroussopoulos,

www.janepaint.com ISSN 2631-5815 (online)
ISSN 2631-5807
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Elements in Philosophy of Law
edited by
George Pavlakos
University of Glasgow
Gerald J. Postema
University of North Carolina at Chapel Hill
Kenneth M. Ehrenberg
University of Surrey
Associate Editor
Sally Zhu
University of Sheﬃeld

CONTEMPORARY
NON-POSITIVISM

Emad H. Atiq
Cornell University

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Elements in Philosophy of Law

DOI: 10.1017/9781009288293
First published online: February 2025

Emad H. Atiq
Cornell University
Author for correspondence: Emad H. Atiq, [email protected]

Abstract: This Element defends and clarifies the thesis that the legality
of a system of rules depends on its moral features. Positivists who deny
this dependence struggle to explain: (1) the traditional classification of
moral norms as a form of a priori law; (2) judicial reliance on moral
norms in legal discovery; (3) persistent theoretical disagreement about
intra-systemic, law-determining facts; (4) why radically arbitrary or
immoral schemes of social organization represent borderline cases of
law; and (5) why law, like other artifacts, can be evaluated in a kind-
relative sense (“as law”). Meanwhile, traditional versions of non-
positivism overstate the dependence going further than the desiderata
warrant. A moderate theory is formulated: law is an artifact whose
existence depends on adequately performing an essentially normative
function. The theory’s justification lies in its explanatory power:
a comparison with other “value-driven” artifacts, such as artworks,
proves vital for understanding legal language, reasoning, and practice.

Keywords: legal rules, moral principles, concepts of law, goodness-ﬁxing

kinds, normative artifacts
© Emad H. Atiq 2025
ISBNs: 9781009539128 (HB), 9781009288309 (PB), 9781009288293 (OC)
ISSNs: 2631-5815 (online), 2631-5807 (print)

1 Introduction: Subject Matter and Methodology 1

2 The Argument Against Positivism 10

3 How to Be a Legal Non-Positivist 35

4 Outstanding Questions 68

References 73

1 Introduction: Subject Matter and Methodology

Legal systems exhibit certain necessary or otherwise systematic features. For
instance, it is hard to imagine a legal system without rules that prescribe or
prohibit forms of behavior. Legal systems seem also to involve power relations
and the use of a characteristic language of obligations, entitlements, and
responsibilities. Philosophers of law are interested in identifying such features,
their degree of generalizability, and, ultimately, whether the general features are
amenable to philosophical explanation – that is, an explanation in terms of the
nature or grounds of law. And one prominent view, or family of views, main-
tains that law necessarily exhibits certain normative features that bear on what
law, essentially, is. On this way of thinking, in order for a scheme of social
organization to constitute a legal system, it must satisfy not just non-normative
criteria, such as having prescriptive or proscriptive rules, but essentially norma-
tive criteria as well, such as being to some extent good, or rational, or just.
The view is known in the literature as “legal non-positivism” or “anti-
positivism,” which is an unfortunate name for several reasons. Besides being
drab and not very informative, it implies that what unifies the research program
is the rejection of some other view – namely, positivism. Positivists emphasize
social facts and social criteria to the exclusion of the normative in their account
of whether and why a society counts as having a legal system – roughly, facts
concerning what members of the society believe, say, do, or desire. However,
not all views inconsistent with positivism are conventionally discussed under
the rubric of “non-positivism,” nor are they all covered by this text, which
focuses on several contemporary strands. If anything, it is the aforementioned
normative thesis about law that, once suitably clarified, happens to be univer-
sally rejected by positivists and that serves as our unifying principle.
Some justification for conventional labels may be found in the fact that legal
positivism serves as an excellent starting point for philosophical discussions
about law. Not because positivism is the default or leading view of law’s nature
(a claim positivists sometimes make but that finds little support in actual
empirical studies investigating the views of contemporary philosophers, jurists,
and the folk) or because it came first in the history of legal philosophy (it didn’t).
Legal positivism serves as our point of departure for intellectual reasons – that
is, for its simplicity as a general theory of law, parsimony, and ability to explain
much of what needs explaining about law without recourse to the kinds of
controversial assumptions that non-positivists typically help themselves to.
Since we want our theory of law to exhibit virtues like simplicity (even as non-
positivists), it is best to see how far we can satisfy our descriptive and explana-
tory ambitions based on positivist assumptions alone. On this telling, positivism

as a characterization of law in the juridical sense bears the same relation to its
subject matter as Newtonian physics does to the physical laws – of being
a powerful approximation, adequate for most practical purposes, but perhaps
less than fully accurate.
HLA Hart’s (1960) view, the most influential of all positivist accounts, is
helpfully illustrative of the assumptions and explanatory focus of positivists.
Hart was impressed by, among other things, the form or structure of legal systems.
Legal systems paradigmatically, and perhaps universally, exhibit a certain hier-
archical form. They consist of rules that prescribe or prohibit forms of conduct,
but there are also rules for determining, changing, and figuring out the rules of the
system. Hart was impressed, also, by the fact that participants in legal systems
seem to employ a “characteristic . . . normative terminology” of what people
ought to do or are permitted to do, and, moreover, that they seem to follow the
laws in a way that cannot be characterized as unreflective obedience (p. 56).
Rather, participants within legal systems – especially those who enjoy an “offi-
cial” status within the system – present the law as worth following. Such reflec-
tions led Hart to the view that legal systems are, essentially, a kind of social order
that (1) exhibits a hierarchical structure consisting of first-order rules as well as
higher-order rules – so-called “rules of recognition, change, and adjudication”;
and (2) includes fundamental rules that are followed by members of a community
based on certain normative assumptions that together comprise what Hart called
the “internal point of view” on the rules.
What makes Hart’s theory a positivistic account of law isn’t his emphasis on
the formal structure of legal systems or on the attitudes held by officials and
others in such systems (normative or otherwise); it’s a further claim of the form:
“. . . and that’s it.” Hart’s view is positivistic because any social order, no matter
how vicious, irrational, or bizarre (with some important caveats that we’ll get
to), counts as a legal system, so long as it manifests the relevant structure and
certain social facts regarding people’s attitudes towards the rules obtain.
Other positivists have emphasized other putatively necessary features of law,
such as the existence of power relations, especially, power relations between
a sovereign and subordinates, or the use of sanctions to elicit obedience (Austin
1832 [1995]). But all agree that social, and perhaps structural, facts alone can
account for law’s existence. More recently, positivists have tended to acknow-
ledge certain qualified connections between law and normativity – for example,
that law necessarily deals with matters of moral concern, makes moral claims,
and entails certain morally evaluable risks (Raz 1994; Shapiro 2011: p. 212;
Green & Adams 2019; cf. Hart 1958: p. 619). But no positivist worthy of the
name has ever conceded that a social order’s legality necessarily depends on its
merits, in a robustly normative sense of “merit” (Gardner 2001).

While positivist accounts of law such as Hart’s have shed considerable light
on the nature of legal systems and legal objectivity, they are vulnerable to
challenge. For legal orders exhibit a broad range of features that aren’t so easily
explained if positivism is true, some of which it takes a degree of immersion in
legal history and practice to appreciate. Section 2 catalogs these features, which
concern: the role of moral and more broadly normative considerations in legal
reasoning, both historically (2.1) and in contemporary legal practice (2.2); the
nature and persistence of intra-systemic legal disagreement (2.3); the intuitive
distinction between bona fide legal systems and social orders established by
powerful organizations devoted to the criminal and the absurd (2.4); and the fact
that the law lends itself to both functional and kind-relative normative appraisal
(2.5). Overall, this section develops and consolidates the argument against
positivism drawing on recent scholarship not just in philosophy but in legal
history and social psychology as well. Section 3 explores the different forms of
non-positivism in the literature that have been motivated based on positivism’s
explanatory gaps, including natural law theory (Section 3.1), Dworkinian
interpretivism and the “one-system view” (Section 3.2), as well as dual charac-
ter and aggregative cluster accounts of the concept of law (Section 3.3). After
highlighting some problems for these more traditional views, I argue for
a moderate form of non-positivism that forges several surprising connections
across theories (Section 3.4). The main upshot is that we cannot make sense of
legal systems and their characteristic features without recourse to some genu-
inely normative criteria and without an account of the metaphysics of norma-
tivity. But, as I explain in Section 4, questions concerning the content of the
relevant norms and the nature of normativity remain unsettled in ways that
define an agenda for future work.
Let me note at the outset that the discussion is centered on ideas and argu-
ments, rather than persons and personalities, an approach I take to be essential
for moving the debate forward. This text does not aspire to be a comprehensive
summary or review of every contribution to legal philosophy made by its major
or prominent figures. There are plenty of excellent resources on the history of
jurisprudence that do just that. Instead, my goal is to foreground what I take to
be the most important issues, the most interesting arguments, and the most
compelling observations on which an original and attractive set of answers to
the traditional questions of jurisprudence can be based. That said, by the end of
the discussion, we will have covered more than enough ground to enable the
engaged reader to contribute intelligently to the full spectrum of philosophical
debates about the nature of law.
In preparation for the more substantive discussions to follow, the remainder
of this introductory section makes a few more observations about methodology.

Hopefully, the way I’ve described the project of legal philosophy sets it apart
from others with which it is often conﬂated, such as projects within lexical
semantics or practical ethics. As I see it, the central project of legal philosophy
is descriptive, explanatory, and synthetic: the goal is to catalog what legal rules
and practices are generally like and to develop a theory of law that explains the
systematic features while being consistent with our considered views on related
matters, such as the nature of rules, group agency, language, and morality. Since
not everyone shares this vision of legal philosophy, the remainder of this section
is devoted to correcting some common misconceptions about the subject,
several of which are surprisingly common even among philosophers. Those
who feel conﬁdent in their sense of the methodology should feel free to skip
ahead to Section 2 or, alternatively, return to Section 1 once they have seen the
methodology in action.

1.1 Analytic Jurisprudence and Conceptual Analysis

As I’ve suggested, the starting point for legal philosophy is some candidate
feature of law or legal systems that is putatively necessary or, at the very least,
systematic in a way that invites explanation. Where, one wonders, does evi-
dence of a feature’s necessity come from? Philosophers rely on ordinary
observations about actual legal systems, of course. But they also rely on
conceptual intuition, especially when exploring the space of all possible sys-
tems of law.1 For instance, it seems like a conceptual truth that wherever there is
law, there are systems of more-or-less explicit rules and, plausibly, rules that
attract some form of social acceptance. Moreover, as we’ll discover shortly,
philosophers often motivate their accounts of law based on meta-semantic
intuitions, such as intuitions about when and why parties who disagree about
the content of the law are disagreeing about a common subject matter (and not
just talking past each other).
All of this fosters the impression that legal philosophy is fundamentally
interested in language – in particular, the concept or application criteria associ-
ated with the ordinary term “law” – perhaps with the ultimate goal of supplant-
ing the not-very-informative deﬁnitions currently in the dictionary. Motivated
by this vision of philosophy’s aims, some contemporary philosophers have
adopted the experimental methods of social psychology to test how subjects
who are trained in neither law nor philosophy use legal terminology in response
to philosophical thought experiments (Donelson & Hannikainen 2020;
Flanagan & Hannikainen 2020; Tobia 2022).

1
Raz’s (2002: p. 159) reﬂections on the possibility of law in a society of angels powerfully
illustrates this method.

Our setup of the problem should help clarify why legal philosophy is not
exclusively or even primarily concerned with ordinary language or meaning.
Philosophers writing in this area certainly use the concept of law to help fix
a target of analysis (Raz 1979: p. 221). By the concept of law, I mean the broadly
shared application criteria or usage rules associated with a term in ordinary
language: “law” as employed in juridical contexts.2 We deploy our own under-
standing of this concept when we decide whether this or that actual or imaginary
social order constitutes a legal system. And more generally, much of philosophy
consists in scrutinizing the concepts we use and even revising our overall
conceptual framework to keep it in order, since we often don’t know which of
our concepts (including meta-concepts) need refining until their deficiencies
become salient to us through systematic reflection. So, philosophers can be said
to both use ordinary concepts and deploy a kind of conceptual expertise, one
that’s earned through careful reflection on a broad range of relatively basic and
important concepts.
But ultimately, ordinary terms and the shared concepts they express serve as
mere steppingstones, useful for the purpose of drawing attention to
a phenomenon that is interesting in its own right, and that may or may not be,
in the present context, the exclusive referent or meaning of the term “law.” The
phenomenon of interest is a kind or category of normative system that is
reflected in our general reasoning about social orders and their objective
features – a form of reasoning that philosophical thought experiments and
arguments more broadly are designed to elicit.3 By analogy, the term “water”
is ordinarily used to pick out different things in different contexts – often
(though by no means always) the potable stuff in rivers, lakes, and streams
with its standard percentages of isotopic isomers; but in other, more scientific
contexts, a specific substance with a particular constitution. Scientists are no
more beholden to ordinary usage, contexts, and meaning than philosophers of
law, and appreciating this fact does not require an extended detour through the
philosophy of vernacular kind terms (see, e.g., Putnam 1973; Kripke 1980). The
category reflected in philosophically informed reasoning about laws and legal
systems may not be semantically magnetic, in the sense of being a fitting
candidate for the shared meaning of a publicly available term. But it might
still be worth elucidating if it happens to be implicit in our considered

2
The points to follow do not turn on any particular theory of concepts, criterial or otherwise. The
observations hold just as well on inferentialist and use-theoretic accounts of the nature of
concepts. See, e.g., Dummett (1993), Brandom (1994).
3
For related points, see Marmor (2013) and Finnis (2007: p. 276): “There is no point in trying to
explain a common-sense concept which takes its meanings from its very varied contexts . . . My
purpose has not been to explain an unfocussed ‘ordinary concept’ but to develop a concept for use
in a theoretical explanation.”

reﬂections about an objective aspect of the world – that is, if it is cognitively

magnetic.4
That said, how closely legal philosophers hew to what participants in legal
practice are tracking using legal terminology may determine how much interest
there is outside philosophy in its subject matter. I’ll point out later that legal
positivists may have retreated to an overly provincial subject by neglecting to
consider how legal experts within legal systems reason about law. But for now, we
should stay alive to the possibility that the topic of interest – roughly, the nature of
a kind that corresponds to, among other things, certain distinctions we are
disposed to draw upon reﬂection between normative systems – may be interesting
in its own right, regardless of whether it corresponds perfectly to the ordinary
concept of law. At the same time, no philosophical account of the nature of
a kind could be complete that didn’t include some understanding of the linguistic
expressions we use to refer to it. In the same vein, no one thinks that a complete
metaphysics of morality could afford to ignore the nature and function of moral
language. To sum up the point of this subsection, we shouldn’t dismiss (informed)
conceptual intuitions about law as irrelevant to the philosophy of law nor take the
examination of a concept in shared use as its ﬁnal goal.5

1.2 The Metaphysical Turn in Contemporary Jurisprudence

For the reasons discussed, the present task is to develop a satisfying account of
the nature of a kind of social order, an account that explains the regular features
of its instances. We can call the property that instances of the kind share “the
property of being a legal system” so long as we bear in mind the caveats about
tying the subject matter of jurisprudence too closely to a shared concept or
ordinary term. In the terminology of contemporary metaphysics, we’re inter-
ested in the essence and grounds of being a legal system – or what it is in virtue
of that a set of rules get to be legal (cf. Rosen 2010; Marmor 2013; Chilovi &
Pavlakos 2019; but see Tripkovic & Patterson 2023). One hopes that an account
of the grounds of legality construed as a property of a system of rules will shed
light, also, on the grounds of the legality of specific rules within any such
4
A category is cognitively magnetic in the stipulative sense I intend here if its fittingness for use in
cognition becomes apparent through ideal reflection. A category might be relevantly useful
because it carves nature at its joints (leaning, here, on the more familiar concept of semantic
magnetism developed by Lewis (1984)) or for other reasons, such as convenience and fit with
a broader conceptual scheme.
5
How much does the methodology I’m recommending here differ from the view of “conceptual
analysis” offered by Jackson (1998: pp. 42–44) and Chalmers & Jackson (2001)? In a nutshell,
their approach seems overly constrained by ordinary conceptual intuitions; it isn’t clear how
much room there is on their view for revising the categories we use based on theoretical
considerations of consistency, explanatory adequacy, simplicity, and fit with a larger conceptual
scheme. But a serious discussion of this issue would take us too far afield.

system – or what legal philosophers sometimes call “the criteria of legal

validity.”6
Let me say briefly why this approach to setting up the issues does not involve
any dubious metaphysical assumptions. Talk of kinds, kind-properties, and their
essences might seem controversial in the context of understanding the social
world. As a colleague once put it to me, “unlike water, law is not a ‘thing’ out in
the world whose ‘nature’ can be investigated under a microscope.” It’s true, of
course, that we cannot point at the property that philosophers of law are
interested in – the property of being a legal system – the same way we can
point to water to make it the shared subject matter of investigation. But that’s
true of specific laws as well, construed as rules or norms, whose existence and
amenability to investigation we have no reason to doubt. And the fact that
properties and other abstracta have essential natures can be motivated using
ordinary examples. We know that the property being red essentially involves
being a color. Being an animal essentially involves being concrete. Being
a triangle essentially involves being trilateral and triangular. Whether some
properties are similarly essential to being law or being a legal system is
a perfectly coherent question, even if the answer is not straightforward.7
Still, there are at least two kinds of concerns one might have about the
framework that I’ll note here, but for reasons of space won’t be able to address
fully. The first relates to the abstract as such. Some philosophers deny the
existence of properties and, indeed, all abstracta – namely, nominalists (see,
e.g., Goodman & Quine 1947). But their doubts about the abstract are perfectly
general. Since talk of properties comes naturally to legal philosophers – indeed,
it seems to be common ground in legal philosophy that there are abstract
entities – we can set such general doubts aside.
The second concern is more pressing and has to do with the possibility of
a shared subject matter. What ensures that within the philosophy of law (setting
aside more general discourses about law), theorists are all investigating the
same thing, the same kind or property? What secures a common subject matter
in the philosophy of law is agreement in our observations about the regular

6
The precise relationship between the legality of a system of rules and the legality of specific rules
within a system is explored in subsequent sections.
7
On the essential properties of abstracta, see Fine (1994) and Zalta (2006). Roughly, the essential
properties of an abstract object are included in our conception of the object. To borrow one of
Zalta’s examples, being a detective is essential to being Sherlock Holmes, given that our concep-
tion of the fictional character plausibly “encodes” his being a detective. The fact that our
conception of an object encodes some property needn’t be transparent to reflection. Some
conceptual commitments are “discovered” because they are nonobviously entailed by other,
more transparent commitments. Many technical concepts that have worked their way into public
consciousness are used without complete mastery of their nature (see, e.g., Burge 1979). I think
this is true of legal concepts.

features of law that call out for explanation – that is, agreement about the
desiderata that constrain a philosophical account of legality. But the concern
is a perfectly legitimate one because philosophers often don’t share all the same
assumptions about law’s necessary or explanatorily relevant features. So, we
should stay alive to the possibility that positivists and non-positivists might be
categorizing social orders differently, and analyzing distinct categories as
a result, in ways that are on a par in terms of their ability to track objective
features of and distinctions within the social domain. But we cannot know
whether that’s true without engaging with the dialectic. Even if it turns out
that the philosophy of law has given us two coherent means of categorizing
social orders, the fact that exchange between these two camps persists and has
persisted for as long as it has suggests that there is enough overlap in their reasoning
about law for exchange to be productive – that is, for both positivist and non-
positivist philosophers to learn from each other about which regular features of law
invite explanation and how the explanatory puzzles might be resolved.

1.3 Conceptual Engineering and Practical Philosophy

Since a fully general account of the nature of legality may have implications
about the content of the law in particular jurisdictions, and since what the law is,
“here” or elsewhere, is often a high-stakes matter, the philosophy of law is
vulnerable to a kind of pragmatic encroachment. That is, pragmatic consider-
ations may inﬂuence theory choice, with participants in philosophical debate
embracing some view in the hopes that its wide acceptance, including by legal
ofﬁcials, will lead to positive outcomes in society.8 This might happen impli-
citly, as when we engage in motivated reasoning. Or it can happen openly when
the explicit aim of inquiry is to “engineer” a concept or category, call it LAW*,
that, if widely embraced, is likely to promote outcomes we care about, regard-
less of whether it is consistent with our intuitive or ordinary ways of categoriz-
ing social orders (see, e.g., Waldron 2001; Murphy 2008; Jiménez 2023).
In fact, a growing body of literature suggests that debates about the nature of
law, along with other debates in philosophy, are disguised “meta-linguistic
negotiations” (Plunkett & Sundell 2013a; Plunkett 2016). A meta-linguistic
negotiation occurs when parties who seemingly disagree about the nature of
some subject are implicitly negotiating how the referring term should be used
going forward while using the term as though their preferred semantic rules
were already in place. Participants in meta-linguistic negotiations may be
indifferent to what the term actually refers to and the correct semantic rules

8
On the practical and ideological uses to which jurisprudence is sometimes put, see Atiq and
Mathews (2022).

implicit in general usage. But pretending that their own use of the term
conforms to existing rules is an essential aspect of their persuasive strategy.
There are still more nuanced accounts of the role of pragmatic considerations
in the philosophy of law. Joseph Raz (1979), for example, argues explicitly that
philosophical analyses of categories like law may be driven in large part by the
need to explain certain settled features of law, but that there is room for practical
considerations, along with considerations of clarity and consistency with
a broader conceptual scheme, to refine our conception of law, and even to
modify it insofar as its precise contours are underdetermined. But none of
these views offer quite the same vision of legal philosophy as the one outlined
above. While I share Plunkett and Sundell’s view that philosophers don’t
necessarily use ordinary terms in ordinary ways (indeed, philosophical argu-
ments such as intuition pumps are often designed to put pressure on ordinary
concepts), I reject at least two claims that are either entailed or strongly implied
by their proposed interpretation: (1) that it doesn’t matter to participants in these
debates whether they are using a shared term to express a shared concept, and
(2) that the considerations that motivate participants are primarily pragmatic.9
The meta-linguistic negotiation account in its most unqualified form seems to
me flawed, since it flies in the face of serious reflection on the nature of
philosophical disagreement by participants in these debates and, also, since
metalinguistic negotiation seems to me to be both morally and rationally
objectionable in philosophical and legal exchange, even if it might be a more
acceptable communicative strategy in more playful contexts.
In any case, this text’s central task is emphatically not to lay out a practical
case for non-positivism (or a practical case for how we should use the term
“law” going forward). I shall defend non-positivism, simply, as an accurate
characterization of a kind, law, that regulates our considered judgments about
the general and necessary features of legal rules, a defense that should be
evaluated on those terms. Although non-positivists have sometimes relied on
pragmatic considerations to defend their account, I will not be summarizing
such arguments because, even if we assume their relevance, I am simply not
sure which way the pragmatic considerations cut. Whether judges and other
legal officials would behave better if they were to embrace a non-positivistic

9
See, e.g., Plunkett and Sundell’s (2013a: pp. 14–17) discussion of disagreements over the
spiciness of a meal or the criteria for being an athlete. On their interpretation of bedrock juridical
disagreements, jurists with different concepts of law “negotiate how words should be used” and
“pragmatically advocate” for their preferred concept (2013b: pp. 242, 264–267). In fact, the
application of their theory to disagreements in which participants explicitly contest the meta-
linguistic characterization is far from straightforward. See discussion in Rudolph (2023). For an
alternative account of legal disagreements that doesn’t necessarily involve ascribing different
concepts of law to judges (or philosophers) with superﬁcially incompatible conceptions, see 3.4.

conception of law seems to me to be a hard question for moral philosophy and

social science. It isn’t a question for the descriptive metaphysician. And so, the
focus in what follows is on observations about legality that, as far as I can tell,
are non-normative and apolitical, cry out for explanation, and aren’t so easily
explained by a positivistic conception of law.

2 The Argument Against Positivism

The order in which I review the considerations to follow does not track the order
in which they were introduced into legal philosophy. It is an order that seems
most logical to me and reflects my convictions about how the overall case
against positivism ought to be structured to be maximally compelling. For
instance, some readers might expect the section to lead with Ronald
Dworkin’s influential observations about moral principles and theoretical dis-
agreement in law. But I hope to persuade such readers that postponing our
engagement with Dworkin until after we’ve surveyed the historical facts in 2.1
helps us see the force of his arguments more clearly. At the same time, I’ve
endeavored to distinguish the considerations on which a case against positivism
might be built from the “camp” with which they are associated. The arguments
we’re about to discuss appeal not just to considerations raised by non-positivists
but also to observations made by positivists whose implications have yet to be
fully drawn out. Arguments that favor specific versions of non-positivism,
rather than non-positivism generally, are addressed in Section 3. The focus for
now is on considerations of general significance.

2.1 Moral Principles in Legal History

A remarkably regular feature of legal systems across recorded history, including
the legal systems of ancient Egypt, Greece, Rome, early modern Europe, and
pre-twentieth-century America, concerns the account offered by legal ofﬁcials
of the content of the law, an account included in primary legal texts. The law, it
was said, included certain principles of rationality and justice whose legality
was supposed to be self-evident.10 Such claims did not go uncontested; both the
content of this alleged body of a priori law and its very possibility were
routinely disputed. But a commitment to at least some such laws was sufﬁ-
ciently standard to be taught to new students of law in universities.11 For
instance, a principle of impartiality, forbidding any person from being a judge

10
The historical literature on the subject is rich. For a survey and its signiﬁcance for legal
philosophy, see Atiq (2023).
11
To pick just a few illustrative studies, see Helmholz (2015), Grey (1978), Corwin (1928), Pollock
(1902), and Vander Waerdt (1994).

in their own cause (nemo iudex in causa sua), has been presented at various
times as a paradigmatic example of a priori law.12 A principle of reciprocity,
imposing reciprocal duties on sovereign and subject, enjoyed a similar status in
early English common law: of being law that applies ex proprio vigore.13 Legal
officials, including individuals tasked with law-discovery, believed that they
could rely on such principles to resolve disputes and obligate both subjects and
sovereign regardless of the existence of local statutes, legitimating customs,
agreements, or constitutions. The Romans called it “natural law,” but the prin-
ciples were given many other names at different times and in different systems,
including “moral law,” “unchangeable law,” and even the “the law of laws.”14
During the early modern period, especially, legal texts explicitly distinguished
these principles as a form of “natural,” universally applicable, and default law
from what they called “positive law,” or law posited by states and persons.
Three key features of this practice are worth emphasizing: (1) the fact that
jurists classified principles of rationality and morality as “law” (or “lex” or
“jus”), (2) that they deemed the legality of the principles a priori, and (3) the fact
that the principles of a priori legality were consequential within the system in
light of the broader practice of legal officials and other actors. To elaborate on
this third point, the principles of a priori law were employed by judges and
lawyers in thoroughly practical ways, including to resolve disputes, constrain
kings, queens, and legislatures, and fill gaps in other posited law, such as
statutory or precedential law. These contextual facts suggest that the relevant
judgments of law track the juridical sense of interest, and not the many other
senses of “law” that find expression in such phrases as “the laws of mathemat-
ics” or “the law of thermodynamics.” Later, we shall discuss a philosophical
position that the literature dubs “natural law theory” and its relationship to this
practice. But our present observations concern an entirely ordinary (i.e., non-
philosophical) regularity: a practice visible in both civil and common law
traditions, at least until the turn of the twentieth century.15
What is a legal positivist to make of this history?16 Neither the classification
of a principle like nemo iudex in causa sua as a form of law nor the explanations

12
See Yale (1974). For illustrative cases, see City of London v Wood (1702), 88 ER 1592 at 1602,
Thomas Bonham v College of Physicians (1610), 77 ER 646 at 652.
13
See discussion in Price (1997). As Price points out, “natural law or unwritten, fundamental law –
law that was beyond the reach of the customary or municipal law” – was the basis for the holding
in the famous case of Calvin v. Smith 1608, 77 ER 377 at 392, establishing birthright citizenship
in England for Scottish-born subjects after King James I became King of England (p. 96). The
case itself and the context in which it was decided are well worth examining for understanding
the salience and supremacy of the “law of reason” in early English common law.
14 15
See sources cited and discussion in Atiq (2023: p. 52). See sources cited Note 11.
16
Hart discusses the history of the principles of legality only in passing. See discussion in Waldron
(2008a).

jurists gave for why the principle counts as self-evident and universal law seem
consistent with positivism. Positivists maintain that a principle’s legality cannot
obtain independently of jurisdiction-specific social facts, such as facts about
local customs or rules of recognition. But that seems to have been explicitly
denied by ordinary legal officials, as part of their official story about the content
of their law. The a priori laws were not “derived” from more fundamental legal
rules. Their legal force was portrayed as independent of jurisdiction-specific
customs or conventions. And in several of these systems, jurists did not all agree
about the appropriateness of relying on the principles of “natural law.” And yet
a significant and visible number of jurists nevertheless did.17 Given this back-
ground, the positivist’s explanatory options appear limited (for a more detailed
analysis, see Atiq 2023).
One option would be to dismiss the historical claims as myths borne of
a premodern conception of the world. Past jurists were simply mistaken in
their assessment of either the content of the law or the reasons for legality. But
the mistake should seem puzzling if we assume positivism’s truth. Of course,
people have been mistaken about all sorts of things over the course of human
history. Far too often they have been mistaken about what justice requires. But it
is unclear why past jurists would have been so mistaken about the grounds of
legality, especially if we assume that positivists are right that the grounds are
purely social. For if we assume positivism, then there appears to be no connec-
tion between the grounds of law and jurists’ apparently mistaken beliefs about
it, which is odd because regular and systematic mistakes about a category in
ordinary use aren’t usually disconnected in this way from its nature. Bear in
mind that officials treated the legality of the principles of rationality and fairness
as a priori or self-evident; it wasn’t inferred based on complex arguments or
considerations. Accordingly, positivists need to explain why officials embedded
in these legal systems would be so mistaken about the concepts and categories
they used. Whereas some systematic mistakes about law may well be explain-
able in terms of positivist assumptions,18 the precise mistake that invites

17
See Atiq (2023: pp. 48–49) for examples of explicit contestation.
18
To illustrate, if we assume the truth of positivism, then perhaps it’s no surprise that people have
historically thought (falsely we may assume) that the gods or the spirits of the ancestors
determine law. According to positivism, social facts ground law, which can, in principle, include
facts involving the actions or desires of supernatural beings, especially beings with incredible
power (recall Austinian positivism’s emphasis on the power to coerce and command obedience).
On this picture, our historical counterparts weren’t confused about the a priori criteria of legality
(which would be puzzling); they were confused about the social facts – speciﬁcally, facts about
the kinds of beings that exist and their psychologies. One might be tempted to think that the
positivist can tell a similar story about people’s beliefs about moral principles. Since pre-modern
societies are more likely to believe that the gods demand compliance with moral principles, they
are more likely to treat these principles as law, even universal law given the gods’ universal

explanation, here, is the tendency to see the morality or rationality of a principle

as a sufﬁcient (and self-evident) ground of its legality. And the need for an
explanation is especially pressing given that, as we shall see in Section 3, more
charitable interpretations of historical practice are possible that don’t rely on
any dubious premodern commitments.
An error theory that posits an unexplained gap between people’s beliefs
about when a concept applies a priori, on the one hand, and the truth about its
application does not seem all that appealing. Alternatively, positivists might
regard the concepts and categories employed within prior legal systems as
simply distinct from the modern category of law (Watson 2022b). On this
approach, most legal systems through the ages have relied on some other
category, call it LAW*, that differs from the category of interest to contempor-
ary philosophers. We might use similar or even identical terminology as our
historical counterparts, but the sense or meaning of terms like “law,” and,
relatedly, our ways of categorizing social orders and normative systems, has
changed over time. This approach has several virtues: (1) it refrains from
positing widespread and unexplained errors within historical legal practice;
(2) it is consistent with and, indeed, explains the fact that a commitment to
“natural” or a priori law isn’t nearly as widespread as it once was; and (c) the
approach is consistent, also, with our methodological assumptions – in par-
ticular, the fact that philosophers aren’t necessarily interested in ordinary
concepts.
Nevertheless, the effort to carve out historical assumptions as irrelevant to the
philosophical enterprise is theoretically costly for several reasons. One reason is
that positivists have presented themselves as engaged in a debate about the
nature of law not just with contemporary philosophers of law but with past
thinkers, such as Aristotle, Pufendorf, Grotius, Aquinas, Austin, and others,
who developed general theories of law at a time when the existence of “natural
law” was widely embraced. And other than Austin, these philosophers were all
committed to natural or a priori law, and were no doubt inﬂuenced by historical
legal practice. Put differently, the philosophy of law isn’t supposed to be

jurisdiction and authority. On this error theory, past jurists were implicitly applying social criteria
in treating moral principles as law, albeit on the basis of false assumptions about the social facts.
This effort to explain the phenomenon has the virtue of at least trying to forge a connection
between people’s mistakes about a category and its true nature. The problem, however, is that
this just-so story ignores the fact that past legal cultures knew how to distinguish the “laws of
god” from the “laws of reason,” and routinely did (Atiq 2022: p. 45). It ignores, also, the fact that
the legality of the principles of reason and justice was treated as self-evident, including within
cultures that didn’t think the gods were necessarily just or rational. By contrast, there were
regular attempts to explain the legality of the commands of the gods in more basic terms, like
their apparent authority over created beings. Thanks to Andrei Marmor for discussion on this
point.

a response to some uniquely modern way of thinking about and categorizing

normative systems or social orders.19 It is supposed to deliver an account of
a category in very broad and general use. So, thinking that there is some sharp
divide between the juridical categories employed at different times entails
conceding that at least some assumptions positivists make about law are deeply
suspect. At the very least, avoiding legal history diminishes the signiﬁcance of
the positivist project, for it implies that the category under analysis is historic-
ally contingent and optional, at least in the absence of an explanation of why the
historical category of LAW* is defective or no longer worth using.
A second problem with the appeal to conceptual change is that it doesn’t seem
like past cultures were operating with a distinct concept of law. The functional
role of what they called “law” seems identical to that of our laws: laws are
invoked to resolve disputes, constrain sovereign and subjects alike, and are cited
in legal texts. This appearance is related to a point we’ll discuss later, concern-
ing the nature and persistence of legal disagreement among agents who differ
dramatically in their views on the grounds of law. For now, note that the relative
lack of explicit references to a category of self-evident natural law in contem-
porary legal practice needn’t be evidence of conceptual change. After all,
modern legal systems have absorbed many principles that were once introduced
as self-evident laws of rationality and justice into their customary, precedential,
and written constitutional laws. That is, the legality of the relevant principles
may be overdetermined in modern legal systems, given their embeddedness in
more familiar positive sources of law. Moreover, contemporary legal systems
didn’t appear ex nihilo. Many such systems present their laws and legal
practices as inherited and to some extent continuous with the past (Postema
2019; Priel 2020). To draw on an example from the legal system I’m most
familiar with, American constitutional lawyers routinely defer to historical
understandings of legal terminology. At the very least, they view past practices
as a constraint on contemporary interpretations of the law. Given such dia-
chronic deference dispositions, it remains an unsettled question whether and to
what extent contemporary legal practice is informed by historical assumptions
about the status of moral principles. Certainly, when viewed in the light of legal
history, certain aspects of modern legal systems become harder for positivists to
explain, an issue we turn to next.

19
Both Hart (1994: p. 240) and Raz (2004: p. 348) suggest, albeit in passing, that their explanatory
focus is on the features of a modern legal system. But they fail to engage with the question of
whether our modern conception of a legal system differs from or is continuous with the historical
conception. Moreover, they present themselves as disagreeing with their historical counterparts
on the nature of law. See Postema (2018) on why we should be skeptical of efforts to limit the
temporal scope of philosophical inquiry.

2.2 Moral Principles in Adjudication

One of Ronald Dworkin’s (1967, 1974, 1986) most important observations
about contemporary legal practice concerned the way judges engage in moral
and evaluative reasoning to resolve legal disputes. Judges are responsible for
figuring out the law as it bears on a dispute, and in discharging this responsibil-
ity, frequently base their legal conclusions on considerations of justice and
fairness. Dworkin (1967) offered two principal illustrations in his classic:
Model of Rules I. Henningsen v Bloomfield Motors Inc. involved a contracts
dispute concerning the interpretation and enforceability of a warranty provision
that purported to limit the defendant’s exposure to liability.20 In refusing to
enforce the defendant’s interpretation of the provision, the court observed that
“courts generally refuse to lend themselves to the enforcement of a ‘bargain’ in
which one party has unjustly taken advantage of the economic necessities of the
other.”21 On Dworkin’s portrayal, the judge was guided by considerations of
justice in reaching a legal conclusion: the unenforceability of the contractual
provision. Dworkin’s other example was Riggs v Palmer (p. 29).22 The legal
question in that case was whether the defendant’s will should be invalidated to
prevent a named beneficiary from inheriting who had been involved in the
defendant’s murder. The court found that no statute under either probate or
criminal law and no prior judicial decision invalidated the will. Nevertheless,
the court refused to enforce it, appealing to what it termed “universal law”: the
principle that “no one shall be permitted to profit by his own fraud, or to take
advantage of his own wrong.”23
It is easy to multiply examples of similar cases involving judges invoking
morality in the interpretation and application of legal rules. Moral principles
have a role to play not just in the law of contracts and estates, but in virtually
every domain of law, especially when laws are crafted using ostensibly moral
concepts, such as, for example, in tort law (the common law of negligence
forbids “unreasonable” risk-taking), criminal law (a sentencing statute might
restrict the maximum penalty to “heinous” crimes) and constitutional law (the
fifth amendment of the US constitution demands “just compensation” for public
takings of private property and “due process” before anyone is deprived of “life,
liberty, or property”). Indeed, just about everyone agrees that judges inevitably
employ moral reasoning to adjudicate some legal disputes. What theorists
disagree about is how to explain this phenomenon.
Dworkin developed two related lines of criticisms against legal positivism
based on this important aspect of legal reasoning. First, it’s not obvious whether
positivists can accommodate the way that moral principles inform the discovery
20 21 22 23
161 A2.d 69 (NJ 1960). Id. at 86. 22 NE 188 (NY 1889). Id. at 190.

of legal content – that is, their specific function or role in judicial reasoning that
aims at law-discovery (1986a: pp. 20–35). The process of legal discovery does
not involve a mechanical or algorithmic application of moral values to situ-
ations, by reference, say, to a set of instructions consisting of clear conditions of
application and precise outcomes. In fact, as every competent lawyer knows, it’s
very difficult to predict, ex ante, the impact moral considerations have on
judicial determinations concerning the content of the law. Dworkin argued
based on such facts that the content and deliberative significance of moral
principles cannot be captured in terms of the kinds of rules that are grounded
in social practice and behavior, and so moral principles must be an independent
ground of law.
Second, Dworkin (1986a: p. 24) pointed out that even if socially grounded
rules or principles implicit in customs could, in theory, function as moral
principles do in their contribution to legal reasoning, judges don’t seem to
derive their moral conclusions from social facts or customary rules. Instead,
they simply intuit situations a certain way – as either just or unjust, reasonable or
unreasonable – and factor these intuitions into their legal decisions.
Furthermore, in cases like Henningsen and Riggs, it isn’t clear that there were
any socially accepted rules – say, a custom of disallowing murderers from
inheriting under a victim’s will – from which a judge could have derived the
necessary conclusions. As Dworkin puts it, instead of invoking “a particular
decision of some legislature or court,” judges in such cases have relied on a “a
sense of appropriateness developed in the profession.” This strand of the overall
argument questions whether a positivist account of the role of moral consider-
ations in legal practice is consistent with what judges, in fact, say and do.
In response to the first challenge, positivists have endeavored to show that
socially embraced rules and conventional norms can, in principle, function as
moral principles do in modern adjudication (Berman 2022). I shall grant for the
sake of argument that this response succeeds, that it is at least possible that
judges who appear to be reasoning about what is just or fair are, in fact, trying to
discern and apply some socially embraced rule (e.g., a rule whose content is
fixed by what most people believe to be fair, rather than what is, in fact, fair).
The present focus is on Dworkin’s second line of argument which seems to me
to be the stronger one – namely, that judges don’t behave as if they are deriving
their moral conclusions from socially embraced rules or conventions in the
relevant range of cases; instead, they seem to be relying on their own sense of
what justice and fairness require.
Positivists have offered several different responses to this second challenge.
Some maintain that Dworkin overstated the significance of moral reasoning in
adjudication, especially adjudication that involves law-discovery. When judges

rely on moral considerations to decide a case, they take on the role of quasi-
legislators, inventing new law rather than discovering pre-existing law (see, e.g.,
Marmor 2011: p. 66). Indeed, some forms of law-making by judges may be
expressly permitted by local legal conventions or rules of recognition. One glaring
problem with this account is that it doesn’t seem consistent with the official view of
participants within legal practice: judges for the most part don’t characterize what
they are doing as making up new law whenever they rely on moral principles,
a point I’ll come back to shortly.
Other positivists emphasize a distinction between law, or the grounds of law, and
the tools judges use to discern the law. The fact that judges rely on moral consider-
ations to reach legal conclusions is not a sufficient basis for inferring that the content
of the law must be determined by moral facts, for moral considerations could simply
be a convenient means of figuring out the nonmoral grounds of law given some
correlation between the two. To illustrate, suppose that in cases like Riggs, the law
of wills was determined, fully and without remainder, by the social facts concerning
the legislature’s overall secret preferences in relation to enforcement. It might still
make sense for a court to engage in moral reasoning to figure out the legislature’s
preference, on the assumption that legislatures are in general morally motivated. On
this interpretation, moral facts turn out to be evidence of what the law is, or of the
law-determining social facts concerning legislative intent, but aren’t, on their own,
an independent source of law. More generally, it is worth noting that judges rely on
all kinds of extra-legal rules and principles in adjudication as tools for figuring out
the law – principles of logic, grammar, statistics, and, indeed, morality – and so, one
cannot infer from adjudicative reliance alone that the relevant principles are law or
grounds of law (Raz 1994: ch. 9, Shapiro 2011: p. 272).
Finally, some positivists – self-described “inclusive positivists” – grant that
Dworkin successfully demonstrated that moral principles could have the status
of law and serve as grounds of law (Waluchow 1994; Coleman 2001; Kramer
2004). But they insist that when moral principles have this status, it is always in
virtue of contingent and jurisdiction-specific legal rules – specifically, more
fundamental rules of law within the system whose legality is grounded in social
facts alone. For instance, an enacted statue or constitution might direct judges to
rely on moral considerations to decide cases, or a socially embraced rule of
recognition might designate moral principles as a source of law.24 However,
inclusive positivists maintain that while “moral principles can enter . . . into any
particular society’s law (as criteria for legal validity or as legal norms)” they
“need not enter” (Kramer 2004: p. 245). The legality of a moral principle within

24
Marmor (2004b: pp. 9–11) helpfully distinguishes these different ways moral principles might
get into the law on the inclusive positivist picture.

some legal system cannot be established based on a priori reﬂection on the

nature and concept of law alone.25 The flaw in Dworkin’s reasoning, we’re told,
is the inference from a contingent and local phenomenon – the status of moral
principles within American and English common law – to a general conclusion
that moral principles necessarily determine the law even in jurisdictions that
lack the relevant social permissions and directives derived from more funda-
mental positive laws.
These responses, despite being mutually inconsistent, may seem persuasive
when the phenomenon Dworkin drew attention to is studied in isolation from
the broader historical context. Indeed, Dworkin focused quite narrowly on
a small selection of illustrative cases from a distinctive legal system that confers
an unusual amount of authority on judges. But as discussed previously in 2.1,
for much of legal history and across a broad range of legal systems, jurists didn’t
simply rely on principles that they deemed moral or rational to reach down-
stream legal conclusions; they explicitly classified such principles as a form of
a priori law of trans-jurisdictional scope. Contemporary jurists rarely endorse
such claims explicitly. But the historical background renders positivist explan-
ations of contemporary practice less plausible for several reasons. First, the role
of moral principles in legal reasoning seems anything but peripheral in view of
the larger context. Second, unlike rules of grammar or logic, moral principles
have been explicitly classified as a form of law in manifestly juridical contexts.
Third, contemporary judges who rely on moral principles to decide cases often
defer to prior judges on the explanation of why such reliance is appropriate, at
times explicitly.26 And if such chains of deference hold, then contemporary
practice may well take for granted, to some extent, prior accounts of the status of
moral principles within law, accounts that are incompatible with positivism. At
the very least, modern adjudicative behavior appears related to, and may be
rationalized by, historical assumptions about the status of moral principles,
which strengthens the case for taking those assumptions seriously.
At any rate, we have reasons for seeking a more unifying explanation of the
role of moral principles within legal systems, especially given that there appears
to be no consensus among positivists about how contemporary legal practice
ought to be understood. This lack of consensus is, I think, telling. The various
explanations, considered individually and independently of the historical facts,

25
This is one of several important claims that sets inclusive positivism apart from the form of non-
positivism that I ultimately defend in this volume. Nevertheless, there are similarities between
the two views along with important differences that I shall discuss in Section 3.
26
See, e.g., the dissent in State v Joyner, 625 A(2d) 791 (Conn. 1993) at 814, noting approvingly that
a commitment to natural law “pervaded eighteenth century legal thought throughout America,
including Connecticut.” See Postema (2018: p. 37) for the importance of trans-historical deference
within the common law.

don’t ﬁt the observed behavioral facts perfectly and involve contestable

assumptions. It’s not clear, for instance, that the rules found in customs and
conventions can capture the content of moral principles or that judges are
reasoning about specifically social facts when they reason about justice. It is
also unclear whether and to what extent there are social permissions in the
relevant jurisdictions to reason as the court did in Riggs, reasoning that the
dissent explicitly deemed inconsistent with the role of the judge as defined by
the American legal tradition (more on the significance of disagreement shortly).
Even if moral principles could be law, or a source of law, simply because judges
treat them as law (a social fact), the problem is that judges disagree about
morality – its content – as well as about the legality of moral principles. Again,
Riggs is a good case for illustrating the lack of juridical consensus, but similar
disagreements crop up in the context of, say constitutional law and interpret-
ation (Dworkin 1996). These problems with the positivist line suggest that, at
a minimum, we shouldn’t settle for a positivist explanation before evaluating
competing non-positivist explanations of judicial behavior, which we’ll con-
sider in Section 3.

2.3 Persistent Theoretical Disagreement

Dworkin (1986b: ch. 1) mined other aspects of legal reasoning for insights into
law’s nature. One regular feature is the persistence among legal experts of what
Dworkin called “theoretical disagreement.” An ordinary disagreement between
two officials might concern the content of the law – whether this or that rule counts
as a legal rule within the jurisdiction. Theoretical disagreements, by contrast,
concern the grounds or determinants of the law – the so-called “criteria of legality”
(p. 4). To illustrate, some constitutional originalists in the United States believe that
constitutional law is determined by the meaning of the constitution’s text at the time
of the constitution’s ratification. Meanwhile, non-originalists insist that what the
text might mean today as well as nonsemantic facts concerning, say, the public’s
preferences or sound public policy determine the law. This disagreement between
originalists and non-originalists isn’t simply about the content of American consti-
tutional law but rather about what determines its content.27 A striking fact about
such disagreements is that they don’t seem to turn on the content of any specific
laws within the jurisdiction, such as customary laws of interpretation.28 Nor do
they appear to be semantic in nature, concerning the meaning of “law.” Most
importantly, theoretical disagreements don’t seem to be cases of talking past – that
is, the disagreeing parties appear to be disagreeing about a shared subject matter

27
See discussion in Solum (2015).
28
For an opposing and unconventional take on the originalism debate, see Baude and Sachs (2019).

(Shapiro 2007). There are questions about how often such disagreements occur,
and how much theoretical disagreement is possible within a legal system (Leiter
2009, 2019; cf. Ewing 2017; Smith 2010).29 But everyone agrees that the phenom-
enon is sufficiently regular to demand an explanation.
The explanatory challenge for positivists is easily illustrated using Hart’s view.
Recall that according to Hart, the laws of a jurisdiction derive from higher-order
rules of recognition and adjudication that are embraced by legal officials. But
theoretical disagreements suggest a lack of consensus among officials about the
content of any such rules. Judges who embrace competing theories of constitu-
tional law, for instance, don’t agree on the law-determining facts, the jurisdic-
tion’s criteria of legal validity. So, if Hart’s view is correct, then judges in these
situations appear to be systematically mistaken, at least insofar as their claims
about the law-determining facts outstrip the agreed-upon content of any higher-
order rules. To illustrate, a rule of recognition in the United State won’t settle the
question of whether originalism or non-originalism offers the correct account of
the determinants of American constitutional law simply because there isn’t
anything resembling consensus on this issue among legal officials, whether
measured in terms of their beliefs or practical dispositions.30
In fact, the problem isn’t just that Hartian positivism entails that judges and
other legal officials must be mistaken about the law-determining facts within
their jurisdiction (so that positivism turns out not to be neutral on substantive
questions of legal content about which experts disagree). The problem is the
implication that officials who persist in theoretical disagreements must be
systematically and pervasively confused about the nature of law and legality.
For surely, these officials are aware of a remarkable lack of consensus concern-
ing the subject matter of their disagreement. And so, they must not realize that
social convergence on a rule of recognition determines the law. Insofar as
positivism entails an error theory about ordinary legal practice in the sense
that some opposing and mistaken philosophy of law pervades and regulates
legal practice, positivists owe us an explanation of why legal experts end up

29
The question of the limits of theoretical disagreement within a functioning legal system is
underdiscussed. Could a competent American jurist deny that acts of congress make American
law or the intra-systemic superiority of the US constitution? In fact, there are plenty of people
(both liberal and conservative) who think that the US constitution is not the supreme law of the
land in the United States. Nevertheless, the conceptual space for disagreement is probably more
constrained than non-positivists like to admit. See Watson (2023).
30
Some positivists maintain that there can be multiple, inconsistent rules of recognition, driven by
consensus within smaller groups of ofﬁcials (Raz 1979: pp. 95–96; Gardner 2012: pp. 1–6). But
that doesn’t solve the puzzle about disagreement, since it’s unclear why these groups
take themselves to be right and opposing groups wrong about an alleged matter of fact: the
intra-systemic grounds of law.

mistaken in these ways about the category – that is, they owe us a theory of
error.31
Of course, an error theory about theoretical disagreements turns out not to be
the only option if we’re willing to look past surface appearances – that is, the
claims of legal ofﬁcials taken at face value. Perhaps their claims are simply
disingenuous or amount to a kind of pretense (Leiter 2009; Marmor 2010;
Plunkett & Sundell 2013). Watson (2023: p. 1), for instance, accuses Dworkin
of construing judicial speech too literally, and writes that:

If we pay attention to the pragmatics of judicial speech, we see that judges do

not disagree over what the grounds of law are; they at most disagree over how
courts should proceed when agreed-upon, though imprecise, grounds of law
underdetermine what the content of the law directs in the case at hand.

Unfortunately, positivists rarely offer much evidence in favor of this interpret-

ation and others like it, which is surprising given their concession that the
behavioral evidence taken at face value cuts against the interpretation. Watson
acknowledges that “judges nearly always speak as if there is a fact of the matter”
about the grounds of law, and “they speak this way even when it is obvious that
legal texts’ meanings or holdings do not fully determine what legal content
directs” (p. 20; cf. Leiter 2009: p. 1223). Although some judges do make
positivist-friendly claims that involve acknowledging, say, their willingness to
fill “gaps,” the point is that many don’t, a fact that invites explanation. Such facts
are usually explained away by appeal to psychological or political factors, such as
a strongly felt need on the part of judges to hide the inconvenient fact that their
decisions outstrip pre-determined rules of law (Marmor 2010: p. 66). But judges
who engage in theoretical disagreements seem awfully sincere. And their alleged
disingenuousness does not come to light through, for example, admissions in
other (private or nonlegal) contexts, admissions that would count as actual
evidence for the positivist line. So, the bottom line is that we need more evidence.
By now, a recurring theme should not escape notice. Embracing legal positivism
entails viewing legal experts in a rather uncharitable light: core participants in legal
practice are either systematically mistaken or disingenuous. The theory might still
be correct, of course. But its imperfect fit with both historical and contemporary
judicial practice suggests that the theoretical core of positivism may not be doing
much explanatory work when it comes to the regular and perplexing features of
legal systems. An apt comparison might be a scientific theory that regularly

31
It is generally agreed that philosophical error theories about ordinary practice bear a theoretical
burden of explaining, either in terms of the theory or ancillary commitments, why participants in
the practice end up systematically mistaken. For discussion, see Hirsch (2002: p. 116), Korman
(2009), and Kovacs (2019).

explains away inconsistent observations as experimental error. The inconsistencies

between ordinary practice and positivism justify, I submit, exploring alternative
theories of law, especially those that endeavor to understand ordinary legal practice
more charitably. Indeed, the case against positivism so far is incomplete since it
turns, ultimately, on a comparative evaluation of the theoretical virtues and vices of
competing non-positivist explanations of legal practice. For now, the point is just
that certain salient features of legal practice lack straightforward explanations if
legal positivism is true.
Before moving on to other desiderata, it might be helpful to briefly compare the
argument from theoretical disagreement to an analogous argument in a different
area of philosophy: metaethics. The comparison is, I think, revealing. It is often
argued that an adequate philosophical account of the moral domain needs to
explain radical moral disagreement. People can diverge radically in terms of
what they regard as morally right or wrong, good or bad, and yet still count as
disagreeing about a shared subject matter (Horgan & Timmons 1991). In this
regard, moral terms behave very differently from natural kind terms like “water.”
The point is sometimes motivated using a scenario dubbed “Moral Twin Earth”
involving “Twin Earthlings” who are much like us except that they regard as good
what we regard as bad, and vice versa. Despite this radical disagreement about the
extension of the concept of the good, it is tempting to think that our counterparts on
Twin Earth disagree with us about the good as long as their concept plays the same
functional role in their motivational psychology as ours: we’re all motivated to
pursue what we judge to be good (and avoid what we judge to be bad). Natural kind
concepts, such as the concept of water, don’t seem to work this way: when
linguistic communities radically diverge on the extension of “water,” it counts as
evidence that they employ distinct concepts.
The lesson that some metaethicists draw from such thought experiments is
that what fixes the meaning of moral terms, and, correspondingly, the criteria for
conceptual competence, isn’t extensional judgments, rather it must be some-
thing like a term’s functional role. Likewise, Dworkin’s argument from theor-
etical disagreement appeals to a meta-semantic intuition – namely, that
theoretical legal disagreements are genuine disagreements about a shared sub-
ject (the grounds of law), even if parties endorse radically different claims about
legal content and its grounds. What this suggests is that, as in the normative
case, conceptual competence isn’t defined by knowledge of a precise extension
for LAW, or strict application criteria, but something else. Perhaps functional-role
facts are central here as well. In any case, the concept of law exhibits similar
features as moral concepts which points to a potential connection, and even if
legal disagreements can’t be as radical (in terms of extensional conflict) as their
moral analogues, a point we shall return to in Section 3.

2.4 Variations on the Gunman Situation (or the Problem

of the Legal Borderline)
So far, we’ve approached the adequacy of positivism indirectly. We’ve con-
sidered some facts about law that seem difficult to explain if positivism is true,
such as the persistence of theoretical disagreement among legal experts, and the
treatment of moral principles by ordinary legal officials and their historical
counterparts. But the force of such considerations depends, ultimately, on
whether non-positivist views can better explain the highlighted facts without
incurring significant theoretical costs (a question we’ll turn to in Sections 3
and 4). The challenge so far has thus been conditional. What follows is a more
direct challenge to positivism based on the plausibility of its extensional
implications – that is, the theory’s classification of certain schemes of social
organization as systems of law.
Consider a scenario that one might describe, using Hart’s (1994: p. 19)
famous phrase, as “the gunman situation writ large.” A criminal organization
gains complete control of a state’s coercive and administrative apparatus. The
organization establishes rules expressly designed to transfer wealth and
resources from the general population to its leadership. Moreover, the organiza-
tion does so with impunity, having made its self-regarding goals and ambitions
explicit. Municipalities and local authorities are afforded some room to govern,
but any rules these subordinate institutions establish must be consistent with the
supreme imperatives of the organizational leadership, directing the population
to serve and enrich the lives of the ruling class. We can stipulate that the citizens
more or less comply with these rules, given the credible threat of ruthless
sanctions. Moreover, imagine that this criminal organization is sufficiently
sophisticated to have established a social order that exhibits higher-order
structure. There are rules for determining the content of the primary rules that
govern, say, tax-and-transfer, as well as rules for changing the primary rules,
though these higher-order rules are also established for the sole purpose of
efficiently exploiting the public.
Do the rules established by our imagined tyrants constitute a legal system? It
is at least tempting to suppose otherwise. The explicit and sole function of the
system is to benefit those in power, and the system attracts compliance only
because the populace is terrified. Of course, many legal regimes over the course
of human history have been both extractive and coercive. But such regimes have
at least tried to offer some justifying narrative. They’ve paid lip service to
higher ideals than pure self-interest, such as, divine right or resistance against
external (and even more vicious) oppressors and bogeymen. Even when extract-
ive rulers have claimed that the powerful, simply in virtue of having power,

have the right to rule, their claims have been manifestly normative – that might
makes right. By contrast, the situation we’ve described involves unapologetic-
ally nihilistic robbers and thieves who admit to serving no one but themselves.
Hart rightly questioned any account of the nature of law that would confer the
status of legality on this picture of pure coercion. His principal target was
Austin’s brand of positivism, according to which law just is the commands
issued by a “sovereign” who happens to be habitually obeyed because she
credibly threatens sanction. Austinian positivists would have no problem call-
ing the criminal organization’s system of rules a form of law, whereas many
positivists and non-positivists have felt, quite naturally I think, that although it
might resemble a legal system, it is too openly exploitative to count as one, to be
elevated, that is, to the status of law and legality.
Hart believed that what’s missing from the gunman situation is genuinely felt
obligation on the part of officials and the populace. Of course, there is a sense in
which the terrified citizens feel obliged to comply – namely, out of concern for
their own safety. But the existence of a legal system depends, Hart argued, on
officials and others taking what he called the “internal point of view,” embra-
cing the rules as, in some sense, worthy of obedience. In our hypothetical,
neither the tyrants running the show nor the citizenry speak in the characteristic
language of morality of what ought to be done, of what’s justified, obligatory, or
permissible when describing their rules. According to Hart, this is the reason
why the “gunman situation writ large” falls short of legality.
To avoid the Austinian implications, other positivists have proposed other
supplementary criteria as essential to law that aren’t satisfied in the gunman
situation. For instance, Raz (1994: ch. 9) maintains that law necessarily claims
authority over its subjects. On a standard construal of Raz’s authority thesis, the
claim of authority is supposed to be (a) a normative claim – a claim of genuine
or legitimate authority, not just raw power; and (b) endorsed by officials and
other key members of the legal system.32 Along similar lines, Shapiro (2011)
has argued that to ensure extensional adequacy, positivists should acknowledge
that law, necessarily, has a moral aim – roughly, that of promoting the general
good – whether or not it actually achieves that aim. As with Raz’s authority
thesis, Shapiro’s moral aim thesis is standardly interpreted in terms of represen-
tations and assumptions made by the officials of a legal system (Plunkett 2013).
So, perhaps what’s missing in the case of the radically criminal organization

32
For Raz, genuine or legitimate authorities issue directives that when followed by their subjects
enable those subjects to conform to what they have independent reason to do better than if the
subjects tried to ﬁgure out the directive-independent reasons for themselves. His concept of
authority is thus a manifestly normative notion.

exercising its coercive powers is simply a claim to legitimate authority or,

relatedly, other-regarding and more broadly moral motives.
But the extensional challenge to positivism inspired by the gunman situation
can be strengthened in ways that undermine the diagnosis offered by Hart and
his followers. Suppose that the criminals in charge in our imagined scenario are
deeply confused. In addition to being highly self-regarding and cruel, they are
mistaken about morality’s demands. The gunmen believe that radical selfish-
ness pursued at all costs is what justice requires, and accordingly, cast their self-
interested commands to the wider populace in the language of morality –
specifically, in terms of the allegedly self-evident truth that self-interest, ruth-
lessly pursued, is good. It’s not at all clear that we’ve suddenly succeeded in
imagining a legal system based on this slight alteration to the original hypothet-
ical, which shows, I think, that the failure of officials to claim authority or to
represent a social order as aiming at what they sincerely believe to be right and
good is not a sufficient explanation for why the “gunman situation writ large”
fails to deliver a legal system.
In fact, we can develop a range of potential counterexamples to legal positiv-
ism inspired by Hart’s challenge to Austin. In addition to the moralizing yet
egoistic tyrants, we can imagine tyrants who have absurdist moral commit-
ments. These particular gunmen impose entirely arbitrary duties on the wider
population. They enact rules requiring bizarre and pointless acts in one-off
situations targeting specifically named individuals. Their rules apply retro-
actively, criminalizing choices made prior to the rule’s enactment. To make
matters worse, the organization’s rules change several times each day. In short,
the organization establishes a system of rules that isn’t just arbitrary and
pointless but one that regularly flouts all of the characteristics that Lon Fuller
famously argued are constitutive virtues of law, such as generality, clarity,
stability, and nonretroactivity, virtues that plausibly make the law good as
a system of law (cf. Fuller 1978: ch. 2).33 As before, the organization elicits
nontrivial compliance through credible threats, and the terrified populace does
its best to conform. Moreover, we can stipulate that the leaders genuinely
believe that compliance with the rules is morally required. Yet it isn’t clear
that our absurdist tyrants are running a legal system or a system of law. A social
order that is entirely and utterly arbitrary lacks the semblance of legality.
Here’s a more qualified way of putting the point. What’s missing in the
highlighted examples, I submit, is a clear semblance of legality. The situations
we’ve described are hard cases in the sense that it’s not obvious whether the social
orders count as systems of law, a lack of obviousness that’s borne out by empirical

33
For further discussion of Fuller’s point, see 2.5.

research on laypeople’s intuitions about laws and legal systems (Flanagan &
Hannikainen 2020). Accordingly, a good account of the nature of law should be
able to explain why such cases seem hard (Atiq 2020a: p. 21). This fact can be
acknowledged without embracing any controversial non-positivist assumptions
about law’s essential goodness (e.g., that law is, necessarily, worthy of respect, or
that it essentially gives its subjects strong, even decisive, moral reasons for legal
compliance; cf. Finnis 2011; Murphy 2005). Even if positivists want to insist,
ultimately, that there can be radically selﬁsh and tyrannical legal systems, or
morally mistaken systems of law composed of entirely arbitrary rules, they need
to explain, in terms of their theory and/or any ancillary commitments, why such
systems fall on the fuzzy edge of legality.34 And that’s not the same as explaining
why the social orders count as immoral, irrational, or, even, simply unfamiliar.
For things can be good or bad in ways that don’t tell against (or in favor of) kind-
membership. A weapon used in war might be highly immoral or unusual and yet
count as a paradigmatic example of an instrument of war. The explanatory
challenge involves saying why the moral badness or irrationality of law seems
connected in some way to questions of classiﬁcation – that is, to whether a scheme
of social organization counts as a legal order. That is, perhaps, the least question-
begging way of characterizing the argument based on the various “gunman
situations.” For as we shall see in Section 3, non-positivists face an analogous
explanatory burden associated with evil or arbitrary law.
The options for revising positivism to explain the legal borderline seem
limited. Positivism is constrained, by design, in the kinds of facts it can appeal
to as potential grounds of law, or criteria of legality. The grounds and criteria
must be non-normative in nature. For instance, Hart’s claim that legal systems
are, essentially, hierarchical systems of rules is a claim about the formal, non-
normative features that law necessarily instantiates. One might hope that by
further specifying some such non-normative conditions on the existence of
a legal system, positivists might discover resources for distinguishing hard
from easy cases of legality. Indeed, law’s hierarchical structure was not the
only formal feature that Hart emphasized in his theory of law. In an intriguing
yet somewhat opaque passage, Hart (1958: p. 619) mentions that only rules of
more or less general application can constitute a legal system.35 He derives the
generality constraint from the very idea of a rule, which, according to Hart, has

34
Finnis (2011) makes a related though distinct point when he notes that a theory of law should
have the resources to explain why some instances of law are “central cases” and others
peripheral. What I’m emphasizing here (and have elsewhere) is an epistemic fact that invites
explanation: the fact that it is intuitively unclear how we should classify these various nonstand-
ard or unfamiliar cases (Atiq 2019: pp. 119–121; Atiq 2020a: fn. 53).
35
Notably, Hart’s discussion of generality appears in the context of his response to a point owing to
Fuller (1978), who famously argued that not just generality but various other features, like

the generality requirement baked into it. In fact, Hart’s claim that a rule, by its
very nature, cannot be overly specific in its content (turning, say, on some
person’s identity or some one-off situation) is eminently questionable. But we
can set the truth or falsity of his theory of rules aside. The point is simply to
illustrate how a non-normative feature, insofar as it is essential to law, might
constrain how arbitrary or absurd a legal system can possibly be.
This approach to the problem seems unlikely to succeed for several reasons.
First, the kinds of structural features of law that positivists have historically
emphasized fail to explain why the various gunman situations involve borderline
cases of law at best. Certainly, the essential generality of law does not, on its own,
rule out the emergence of what is manifestly a legal system out of explicitly selfish,
absurd, and moralizing tyranny.36 Second and more importantly, the more formal
or non-normative features we treat as essential to law, the more complicated our
positivist account of law becomes. And for any such non-normative feature that’s
alleged to be essential to law, positivists owe us an explanation of why it is essential
(consider Hart’s explanation of generality in terms of the nature of rules). And the
explanation cannot simply be that it helps positivists avoid the potential counter-
examples. Otherwise, the resulting strain of positivism will seem gerrymandered to
solve an extensional problem that positivists uniquely face. The borderline cases
we’ve discussed thus involve complicating the standard positivist story in ways
that positivists have yet to address.
My own view is that the classification of the various gunman scenarios should
not be a starting point for a theory of law (cf. Finnis 1980: pp. 9–11). Since it’s
not obvious what we should say about such cases – a fact we should all admit on
either intuitive grounds or on the basis of an inference from peer disagreement
(see Atiq 2019: pp. 119–121) – we may need to leave the problem posed by our
conflicting extensional intuitions unresolved, for now, and return to it after
we’ve examined our reasoning about laws and legal systems more broadly.
Our broader commitments in the philosophy of law might help us address the
problem. And that is precisely how I intend to proceed in the remainder of this
section and the next, by exploring what light we can shed on our uncertainty –
the fact that we don’t quite know what to say about the legal borderline – by
investigating other legal matters, such as the underdiscussed fact that law is
susceptible to kind-relative evaluation.

clarity, publicity, and nonretroactivity, are, in some sense, essential to law (cf. Waldron 2008b;
Raz 2019). We shall return to this Fullerian theme shortly.
36
Moreover, if the essential features of law are described in irreducibly normative terms, such as
nonarbitrariness, impartiality, or fairness, then the view begins to look a lot like non-positivism
(see 2.5). In fact, some positivists have suggested that even Raz’s authority thesis and Shapiro’s
moral aim thesis go a step too far in the direction of non-positivism (Plunkett 2013).

2.5 Law as an Artifactual, Functional, and Goodness-Fixing Kind

The argument of this section requires some setup, and, specifically, some
discussion of our ordinary ways of evaluating things.37 We can evaluate things
as good or bad, better or worse, relative to different criteria. A knife might be
evaluated for how well it cuts things, its beauty, cost, and a range of other
features. But sometimes the criteria we use to evaluate things seem nonacciden-
tally connected to the kind of thing it is. In the case of knives, it’s natural to think
that the better a knife is at cutting things the better it is qua knife, whereas any
analogous claim about a knife’s beauty or cost would seem confusing and
artificial. We mark this distinction in ordinary language in several different
ways. When we wish to indicate that the criteria of evaluation are kind-relative,
we employ the idiom of being good as a K or qua K. The linguistic resources
available to us for this purpose are in fact quite rich: we might say “Ks, insofar
as they are Ks, are better if they are G . . .,” “Ks, as such, should be G . . .,”
“inasmuch as something is a K . . .,” “what is a K is to that extent . . .,” and so
on.38 Additionally, kind-relative standards of evaluation are associated with
certain modal and classificatory judgments. For example, it is tempting to
suppose that necessarily, any object that counts as a knife must be, to some
extent, good at cutting things; and, moreover, that being able to cut things well
would make a knife good as a knife in any possible scenario, whereas it needn’t
make the knife good all things considered or in some kind-independent (e.g.,
moral) sense.
Judy Thomson (2008) famously described such kinds as “goodness-fixing,”
whose nature she argued fixes a (restricted) standard for evaluating instances as
better or worse. Not all kinds are goodness-fixing. It makes little sense to ask
what makes a rock good as a rock, and the same goes for colors, numbers, sets
and collections. But examples of goodness-fixing kinds are easily multiplied
(consider hearts, clocks, and poems) and can be drawn from a variety of
different domains (the biological, artifactual, and aesthetic). Indeed, some
philosophers (including Thomson) think that understanding such kinds – that
is, why they are goodness-fixing – is the key to understanding normativity (cf.
Geach 1956; Foot 2001; Smith 2013). But we needn’t go that far.39
What’s relevant for our purposes is the remarkable consensus within legal
philosophy that law is a goodness-fixing kind. Both positivists and non-
positivists seem to agree that certain features make the law better as law (Atiq

37
This section summarizes and builds on an argument in Atiq (forthcoming). As I explain at the
end of the section, the argument is strengthened by our extensional considerations in 2.4.
38
I rely here on Barney’s (2023) observations concerning the ubiquity of “qua-predication.”
39
For a critical view to which I’m broadly sympathetic, see, e.g., Scanlon (forthcoming).

forthcoming: pp. 1–2). The relevant good-making features include clarity

(whether a law’s content is clear), generality (whether the law applies to groups
of peoples and types of situations, rather than named individuals or one-off
events), publicity (both in terms of the content of the law and the reasons for it),
and nonretroactivity (the inapplicability of law to events that occurred prior to
its enactment). Lon Fuller (1978) described such features as capturing the
“inner morality of law,” and the contemporary literature, following Raz
(1979, 2019), refers to them as “the Rule-of-Law virtues.” That they are widely
regarded as kind-relative or constitutive virtues of law is evident from the fact
that legal philosophers employ the standard idiom of kind-relative evaluation
(“being good/better as K”) and endorse modal and classificatory judgments
generally associated with goodness-fixing kinds. For instance, Raz (2019)
writes that “the rule of law” consists of a set of characteristics that together
represent “the specific virtue of the law as law, a universal doctrine applying to
all legal systems” (see also Kramer 2007: ch. 3; Marmor 2004a: p. 10; Murphy
2006; Shapiro 2011: p. 391).
Since this relative consensus will serve as the basis for a case against
positivism, it is worth asking whether the consensus extends beyond legal
philosophy – whether, say, the layperson on the street is used to thinking of
law as evaluable as law. I suspect it takes some reflection to warm up to the idea.
Nevertheless (and contrary to my armchair expectations), some recent experi-
mental work suggests that even laypeople consider the features of laws high-
lighted by Fuller and others (like generality and publicity) to be in some sense
“essential to the law” in that all legal systems ought to instantiate the relevant
features to some extent, “even though actual laws routinely violate them”
(Hannikainen et al. 2021).
An argument in defense of the claim that law is a goodness-fixing kind appeals
to law’s artifactual and functional nature (cf. Moore 1992, Murphy 2006, Crowe
2019).40 Artifacts are intentional creations or products of purposive agency. In
addition to physical or concrete artifacts, such as clocks and knives, there are,
also, abstract artifacts, such as symphonies, novels, computer programs, and,
indeed, law.41 Again, this is a point of relative consensus (Leiter 2011: p. 666).
Moreover, it is tempting to think of law as a functional artifact, the kind of artifact
that serves some salient function or set of functions. Unsurprisingly, a wide range

40
Natural lawyers argue that the moral merits of law are kind-relative merits. I’ll discuss their
arguments in detail in Section 3.1. This section is focused, exclusively, on a critique of positivism
based on a weak claim that even positivists by and large concede – namely, that the Rule of Law
deﬁnes a kind-relative standard for evaluating law.
41
This distinction between concrete and abstract artifacts, though not relevant to the argument of
this section, will matter later in Section 3.

of functions have historically been attributed to law, such as coordination between

agents, dispute settlement, or the promotion of societal welfare (Ehrenberg 2016:
p. 182). The basis for such function-attributions requires some discussion. But the
initial and hopefully uncontroversial point is just that functional artifacts, such as
knives, guns, computer programs, and universities, tend to be goodness-fixing.
It is worth examining this relationship more closely. A popular view in the
literature is that it is precisely the functions of artifacts that define a restricted
(kind-relative) standard for evaluating instances (cf. Thomson 2008). Not just
any function, mind you, but an essential or constitutive function.42 To use
a well-worn example, someone’s intention to create or use a physical object
for the purpose of cutting things partly explains why the object counts as a knife
(if it does). Knives can be used for many purposes besides cutting things (e.g., as
decorative objects), and there is a sense of “function” that tracks even one-off
uses to which an object might be put (e.g., being used as a toothpick). But
cutting things is plausibly essential to our concept of a knife, or our concept of
what it takes for something to be a knife. And this function – not just any old use
to which a knife might be put – explains the constitutive virtue of knives: being
good at cutting things. Likewise, what makes a flat-head screwdriver good as
a screwdriver is its effectiveness at turning screws, and not, say, prying things
open, even if its frequently used to pry things open.
Like others writing in this area, I take the connection between artifacts,
essential functions, and kind-relative evaluation to be implicit in ordinary
thought and talk. But it would be a mistake to pretend that these issues are
settled, and I shouldn’t be misconstrued as suggesting that they are. How we
should understand function attributions, not just in social theory but in biology
and the natural sciences (where talk of functions is pervasive), is philosophic-
ally contested (see, e.g., Cummins 1975; Wright 1973; Millikan 1984). And the
same is true of kind-relative evaluation (cf. Scanlon forthcoming). What this
means is that any explanation of law’s nature as a goodness-fixing kind will
necessarily involve broader commitments in metaphysics and meta-normative
theory. Nevertheless, there is a basis for thinking that once we clarify these
broader commitments, the right framework for thinking about these issues puts
considerable pressure on positivist theories of law.
To illustrate, suppose we take for granted, as many do, that an artifact’s kind-
relative virtues are explained by essential functions. The challenge in the legal
case is: (1) to specify a suitable function, (2) explain why law has the function
essentially or constitutively, and (3) explain how this essential function relates

42
As discussed in Section 1, I shall rely on an account of the essential properties of abstract objects
defended by Zalta (2006), among others.

to the classic Rule-of-Law virtues. A familiar source of essential functions for

artifacts lies in the agency of creators and sustainers.43 Since law and legal
institutions are the product of collective agency, any shared intention one might
appeal to would have to be extremely general and nonspeciﬁc. For example, we
cannot assume that legal systems essentially involve agents intending to adopt
a body of rules that are designed to be (1) clear, (2) general, (3) nonretroactive,
and so on, where the entire list of Rule-of-Law features show up explicitly in the
shared intention to create law. Fuller (1964: p. 146) puts the point nicely when
he observes:

There is an intrinsic improbability about any theory that attempts to write

purpose in a large hand over a whole institution. Institutions are constituted of
a multitude of individual human actions. Many of these follow grooves of
habit and can hardly be said to be purposive at all. Of those that are purposive,
the objectives sought by the actors are of the most diverse nature. Even those
who participate in the creation of institutions may have very different views
of the purpose or function of the institutions they bring into being.

Our functionalist thesis about law thus needs to be a “modest and sober one.”
Fuller’s own view was that law’s essential function is to “subject conduct to
the guidance of rules” (38–57). But his view doesn’t quite explain why the
classic Rule-of-Law features define a kind-relative standard for evaluating laws.
One glaring problem with the proposal is that highly specific laws – say, rules
that impose one-off obligations on named individuals – can guide people’s
conduct perfectly well. In fact, an entire system of rules can be pervasively
specific, with different rules for each person, and yet succeed in guiding
conduct. Another problem is that not every feature, or set of features, that
causally contribute(s) to an artifact’s ability to perform its essential function
counts as a kind-relative virtue. This is because causal connections can be
contingent whereas kind-relative virtues appear to be modally general, perhaps
even necessary. So, even if the law’s instantiation of features like publicity
causally contribute to law’s ability to guide conduct in ordinary scenarios, that
doesn’t result in the kind of explanation we are after, one that’s true in a range of

43
For a recent development of an intentionalist/agentive model for explaining artifactual functions,
see, Evnine (2016). The intentionalist model does not explain function-talk in biology very well.
On an alternative nonagentive “etiological” model, kind-functions are identiﬁed with whatever
performance explains the emergence and proliferation of instances of the kind in environments
characterized by various selection pressures (see, e.g., Wright 1973). I am not aware of
a systematic application of a “pure” (i.e., entirely nonagentive) etiological account to explain
kind-relative virtues and our ordinary evaluative-talk, in particular. That said, the argument of
this section may be compatible with such an account, although the argument’s success would
then turn on the empirical question of what explains the persistence and proliferation of legal
systems, and whether a discovered etiological function can adequately explain the Rule of Law.

possible scenarios involving law, including, say, a dystopian scenario where

subjects are guided by radically nonpublic law due to microchips implanted by
the authorities in their brains, which receive regular “over-the-air” updates as
the law changes.44
The most plausible candidate for an essential function of law that is both (a)
plausibly grounded in the shared intentions that produce law and (b) can explain
the specific ingredients of the Rule of Law, is a normative function (Atiq
forthcoming: pp. 17–18). On this view, legal rules are, essentially, rules that
are accepted (chosen, enforced, followed . . .) as N, where N is some very
general normative property (such as the property of being reasonable or admir-
able or fair). Only a normative ideal, insofar as its realization is law’s essential
function, could bear the right sort of constitutive (i.e., noncausal and modally
robust) connection to specific Rule-of-Law characteristics, such as publicity
and generality. Consider, for instance, a recent suggestion owing to Peter
Railton (2019) that communities committed to formal rules of social cooper-
ation systematically care about ideals of interpersonal fairness to some extent
(see also Simmonds 2008: ch. 6; Pettit 2023: ch. 2).45 An ideal of interpersonal
fairness does seem suitably tied to specific Rule-of-Law features, given that
laws that are radically specific or nonpublic or retroactive, and so on, seem
contrary to some such ideal and necessarily so. By contrast, it is very hard to
think of some non-normative property that might be similarly related to the
specific Rule-of-Law features – that is, noncausally and constitutively related.
So far, none of this begs any questions against the positivist. It isn’t question-
begging to assume that the existence of law depends on the social acceptance of
rules based on some normative assumptions. On the contrary, we observed
earlier that a number of positivists have defended specific versions of our
more general assumption (e.g., Raz’s authority thesis, Shapiro’s moral aim
thesis, and Hart’s claim that the existence of law depends on officials adopting
the “internal point of view”). Moreover, as we discussed in 2.4, positivists may
need to embrace some such commitment in order to avoid counterintuitive

44
For a detailed discussion of various other problems with Fuller’s proposal and related positivist
accounts such as Marmor’s (2007), see Atiq (forthcoming: pp. 14–16). Cf. Raz (2019: pp. 4–5,
14). One response to the objection raised above involves supplementing Fuller’s account with an
ideal of rational guidance: law aims to guide its subjects through their powers of reason. But this
revision to the Fullerian view brings us much closer to the essentially normative view I am about
to defend, where law’s function is the realization of a limited normative ideal.
45
Simmonds (2008: ch. 1), drawing on Kant, argues that the Rule of Law embodies “an intrinsic-
ally valuable form of moral association,” because it creates certain spheres of freedom and
independence that wouldn’t be possible without it. For our purposes, we needn’t choose between
competing accounts of the nature of the ideal. Our present goal has been to motivate the thesis
that the realization of some distinctive normative ideal is law’s essential function and to draw out
the implications of this functional thesis.

extensional implications. What we’ve presently discovered is that the commit-

ment finds further justification in the explanatory work it can do for us regarding
law’s susceptibility to kind-relative evaluation.
The challenge for positivism emerges once we draw out the implications of
the theoretical assumptions we’ve relied on. Our explanation for why law is
a goodness-fixing kind treats law as a functional artifact. And instances of such
kinds appear to be subject to what Kathryn Lindeman (2017) calls the “thresh-
old requirement.” To be an instance of such a kind, an object must be minimally
good at performing the kind-relative function, where the threshold of suffi-
ciency is indeterminate. To illustrate, a radically blunt piece of scrap metal can
fail to be a knife, despite the good intentions of an incompetent designer, and the
way in which it fails is noncausal and functional: the failure concerns what it is
to be a knife. The threshold requirement is not just intuitive, it finds confirm-
ation in leading philosophical theories of the nature of artifacts (both concrete
and abstract).46 Hence, no account of what grounds the existence of some
instance of an artifactual kind could be complete that didn’t refer to the
instance’s minimally adequate performance of the kind-function. If law is an
unexceptional artifact, as we’ve assumed throughout, then for a social order to
count as law it must be minimally good at realizing law’s normative function.
And this fact entails that law’s existence must be grounded in its normative
merits after all, albeit to some underspecified and minimal degree.
As far as I can tell, positivists have had very little to say about this challenge.
They might insist that law, unlike other functional artifacts that are goodness-
fixing, isn’t subject to the threshold condition (cf. Shapiro 2011: p. 392),47 or
that law’s kind-relative virtues can be explained in some other, nonstandard way
(cf. Raz 2019).48 But absent an explanation of why law should be so

46
See, e.g., Thomasson’s (2003: p. 600, 2007: p. 59), Hilpinen (1993: p. 161), and discussion in
Atiq (forthcoming: pp. 10–12).
47
Shapiro maintains that “it is part of the nature of law to have a moral aim” but denies that “the
failure to attain this end undermines the law’s identity as law.” He points out (rightly) that “a
defective instance of a kind is not ipso facto an attenuated version of the kind.” Defective
instances can certainly be full-fledged members of a kind. However, Shapiro overlooks the fact
that radical defects can and do interfere with kind-membership. Ordinary examples of the
phenomenon are easily multiplied. I intend to produce a knife but due to incompetence and
lack of knowledge, my productive efforts result in a useless piece of scrap metal. What I produce
is not a knife because it falls so radically short of the function of knives. Why shouldn’t the same
be true of law qua functional kind? Notably, Shapiro doesn’t motivate his claims based on
a general theory of functional and goodness-fixing kinds, and a key point of this section is
precisely that our claims about the relationship between law’s nature, function, and existence
conditions are less ad hoc when located within a general and independently motivated theory.
48
As I argue elsewhere (Atiq forthcoming), Raz’s (1979, 2019) explanation of the Rule of Law is
questionable precisely because it portrays law as an oddly exceptional goodness-fixing kind.
However, Raz was acutely aware of the difficulties facing the traditional explanations offered by
positivists, especially in his later writings and unlike other writers on the Rule of Law.

exceptional, any such move will seem ad hoc. To reiterate, we’ve leveraged an
analogy with functional artifacts to explain a feature of law that needs explain-
ing. Following the argument where it leads – that is, accepting the consequences
of treating law as a functional artifact whose normative function explains its
kind-relative virtues – entails accepting a minimal role for normative facts in the
existence and grounding of legal systems.
Since this ﬁnal argument is somewhat complex, it might be worth summariz-
ing its key premises:

(1) The fact that law is susceptible to kind-relative evaluation in terms

of the speciﬁc Rule-of-Law features (generality, publicity, . . .) invites
explanation.
(2) What likely explains law’s susceptibility to kind-relative evaluation in (1)
is the fact that law is a functional artifact.
(3) For the explanation in (2) to work, we must appeal to an essential function
that’s both (a) plausibly intended whenever communities come together to
create and run a legal system, and (b) constitutively tied to the Rule-of-Law
features,
(4) The only essential function that satisﬁes the criteria in (3) is some norma-
tive function: the realization of some limited normative ideal (related, say,
to interpersonal fairness).
(5) If law has a normative function (as per (4)), then it’s being minimally good
at that function – that is, its realization of the relevant normative ideal to
some extent – is a condition and ground of law’s existence, since all
functional artifacts are subject to such conditions.

As I’ve already acknowledged, several premises rely on assumptions about

functional kinds and kind-relative evaluation that, though independently motiv-
ated, are not irresistible. Positivists might be tempted to reject some of the
background metaphysics. But it requires defending an alternative theory that
positivists have yet to develop. Notably, an attractive upshot of the argument is
that it nicely explains why we struggled to classify the kinds of social orders we
encountered in 2.4. If it is an essential truth about law that law must be to some
extent reasonable or fair but the relevant threshold is indeterminate, then it isn’t
surprising that the legality of the radically unfair and unreasonable social orders
we encountered previously seemed unclear.

***
Let us summarize the overall case against positivism. Positivists struggle to
explain several regular and striking features of legal systems and legal reason-
ing, including: (1) the traditional classiﬁcation of moral principles as a form of

a priori law; (2) the role of such principles in legal discovery by contemporary
judges; (3) persistent theoretical (or higher-order) disagreement among jurists
about the law-determining facts within their legal system; (4) the fact that
radically arbitrary or immoral schemes of social organization represent, at
best, borderline cases of legal systems; and (5) the fact that law appears to be
a goodness-fixing kind whose kind-relative virtues plausibly derive from its
artifactual and functional nature. I haven’t claimed that positivist-friendly
explanations of the highlighted phenomena are impossible or inconceivable;
rather, I’ve argued that the theory’s explanatory power is questionable given
that the available explanations seem undermotivated and rely on ancillary
commitments that are less than fully satisfying. For instance, positivist explan-
ations involve uncharitable interpretation (legal officials are systematically
mistaken or confused), improbable assumptions (the category of law is histor-
ically discontinuous), and ad hoc rejections of general explanatory frameworks
(law is exceptional as a goodness-fixing kind). That said, a theory isn’t defeated
by explanatory gaps, baroqueness, or, even, a few counterintuitive implications.
The question is whether there are alternative, non-positivist theories that do
better at meeting our desiderata and without incurring new theoretical costs that
outweigh any gains. That is the question we now turn to.

3 How to Be a Legal Non-Positivist

We began our discussion with an intuitive, even commonsensical, positivist
paradigm for understanding law and legal orders. For all its simplicity, the
paradigm struggled to explain some non-obvious legal phenomena that it takes
a degree of immersion in legal history and practice to recognize. While positiv-
ists believe these problems to be solvable within the framework of their theory,
different positivists have offered different solutions and have, correspondingly,
revised the theory in different ways. But the proposed solutions are less than
fully satisfying, which may explain the lack of consensus among defenders on
how the theory’s explanatory gaps should be resolved.
These theoretical challenges warrant exploring alternative paradigms. In this
section, the focus is on non-positivist theories of law and legal orders. Since
non-positivism is a very broad tent, the accounts we’re about to discuss might
seem unrelated in their ontologies, methodology, and explanatory focus.
Nevertheless, I’ll try to motivate some surprising connections by the end of
the discussion. I’ll start by introducing some prominent varieties of non-
positivism. We’ll consider how these theories address the explanatory demands
raised in the previous section as well as some of the unique challenges they
raise. With the mainstream views on the table, I’ll make a case for combining

the insights captured by different versions of non-positivism, while avoiding

some of the more extravagant postulates, to reveal a moderate position that
accommodates the desiderata without departing too radically from positivistic
starting points.

3.1 Natural Law Theories, Strong and Weak

Recall that for much of legal history, the official account of the content of law
embraced by jurists included references to “natural law,” conceived as a set of
moral and rational principles exhibiting self-evident or a priori legality – that is,
legality in virtue of content alone. In practice, the natural law sometimes
functioned as a set of default rules, filling gaps in “positive” law, and sometimes
as supreme or “higher law,” which so-called positive law could not violate (2.1).
Natural law theories are perhaps best viewed in the light of this historical
context. They include relatively free-standing commitments in ethics and
metaethics, concerning the nature of moral norms, the content of the common
good, and the principles of right action, as well as commitments in the philoso-
phy of law.49 In what follows, I shall focus primarily, though not exclusively, on
the legal philosophy of natural law theorists, though it warrants emphasis that
the existence of objective principles of practical rationality and morality serves
as a starting point for these theorists.50 Different natural law theorists flesh out
the content of the relevant principles differently. And there are, likewise,
different accounts of the metaphysics, including both secular and religious
accounts of the grounds. But the idea that there are some such principles,
whose normative significance and deliberative importance makes them categor-
ically unlike socially constructed norms, such as the rules of etiquette, games, or
language, serves as common ground.
Aquinas’ view may be the most widely discussed natural law theory. Legal
rules, according to Aquinas, represent a socially mediated concretization of the
general moral principles that govern agents. As he famously put it, law is an
“ordinance of reason . . . issued by one who has care of the community and
promulgated.”51 Why do moral principles require socially mediated concretiza-
tion? Aquinas maintains with considerable plausibility that many such principles
have an abstract form: they prescribe or prohibit general types of actions (e.g., “no
unreasonable risks” or “help the disadvantaged”) and, consequently, can be
satisfied in different ways. Positive law, when enacted by an appropriate agent
motivated by concern for the common good, converts these general principles of
49
See, e.g., Finnis (1980: pp. 86–90, 2011: p. 12). We shall return to metaethics and its relevance to
legal philosophy in Section 4.
50
For an overview of natural-law moral theory, see Murphy (2001).
51
Summa Theologiae Part Ia IIae 90.

morality into determinate and more precise requirements.52 Partly because law
gives specific content to, and is a means of complying with, general moral
imperatives, it has comparable normative force: it gives its subjects genuine
and often decisive reasons for compliance (cf. Murphy 2006; Finnis 2011).
Aquinas’ view has exerted a powerful influence on contemporary natural law
theorists, but it is widely acknowledged that his central claim was less than
precise. The claim that law “is an ordinance of reason” has been interpreted in at
least two ways, corresponding, roughly, to the “is” of identity and the “is” of
predication (Murphy 2005). The “strong natural law thesis,” which interprets
the claim as an identity statement, entirely excludes unjust or unreasonable rules
from the category of law (p. 19). This view is hard to maintain given how easy it
is to multiply examples of wicked, unjust, or otherwise unreasonable laws and
legal systems (cf. Finnis 1980). On an alternative and more popular interpret-
ation, the “weak natural law thesis,” Aquinas takes consistency with practical
reason to be a regular (or “generic”) feature of law,53 one that’s sufficiently
regular to define a constitutive standard for evaluating laws without ruling out
the possibility of unreasonable laws (Murphy 2006: p. 21). That is, when the law
departs from the true moral principles, law’s unreasonableness amounts to
a distinctly legal defect, a way of being defective as law. Recall our observation
in 2.4 that many ordinary kinds are associated with kind-relative or constitutive
standards for evaluating instances. The weak natural law thesis amounts to the
view that law isn’t just some ordinary goodness-fixing kind; its constitutive or
kind-relative virtues include such properties as being morally justified.
The weak natural law thesis plausibly entails some version of the strong. As
discussed previously, the existence and persistence of goodness-fixing kinds seems
subject to a threshold condition – instances must exhibit kind-specific virtues to
some, albeit underspecified, degree to count as members of the kind (2.5). Hence, if
the weak natural law thesis is true, then although mere unreasonableness or wicked-
ness may not preclude a social order from counting as a legal system, radical
unreasonableness and wickedness might. Proponents of the weak natural law thesis
often acknowledge as much.54 But this connection between the weak and strong

52
Summa Theologiae Part Ia IIae 96.
53
On this interpretation, Aquinas’ claim that law is an ordinance of reason amounts to a generic
claim like “tigers are striped.” An initial problem for this interpretation is that Aquinas is also
famous for the paradoxical-sounding thesis that an “unjust law is not law.” As we’ll discuss
shortly, there turns out to be a connection between the strong and the weak natural law theses.
54
Crowe (2019: p. 181) writes: “A poorly drafted, unjust or unreasonable standard will be legally
defective, while an incomprehensible or deeply repugnant standard may be no law at all.”
Similar endorsements of the claim that legality is inconsistent with radical injustice that reaches
“an intolerable level” can be found in Alexy (1999: p. 16), Radbruch (1973), and Soper (2007).
For a helpful discussion of the relationship between kind-relative defectiveness conditions and
existence conditions, see Murphy (2012: pp. 59–60).

theses is worth emphasizing because positivists sometimes struggle to see how the
weak thesis puts any pressure on their view. Both theses involve giving up, albeit to
varying degrees, a core positivist assumption – namely, that the existence of laws and
legal systems does not ultimately depend on moral facts and can be fully explained
without having to rely on a substantive theory of what morality demands.
In either form, natural law theory confronts two central challenges. One is
metaethical: the need to explain and motivate the existence of objective prin-
ciples of morality that float freely from the beliefs and preferences of agents.
I will return to this challenge in Section 4, as it deserves an extended discussion
since a commitment to some form of moral realism may turn out to be the main
theoretical cost of non-positivism.
The second challenge is meta-legal: it involves motivating the claim that law,
unlike other systems of socially dependent norms, bears the proposed connection
to what’s morally or rationally required. Of course, part of the case will be based
on considerations of explanatory power and an inference to the best explanation:
that is, some natural law hypothesis may be necessary for accommodating the
desiderata discussed in Section 2 (a point I shall return to in a moment). But more
specifically, if the weak natural law thesis is true, we should be able to explain
why being morally justified makes the law good as law, ideally in terms of an
independently motivated theory of goodness-fixing kinds. Natural law theorists
thus face a stronger version of the explanatory challenge discussed in 2.4. For the
idea that law’s kind-relative virtues include moral goodness is considerably more
controversial and, it seems fair to say, nonobvious than any corresponding claim
about the classic Rule-of-Law features, such as generality, nonretroactivity, and
publicity (cf. Marmor 2004a; Waldron 2008b).
Natural law theorists have responded to the meta-legal challenge in various
ways. On Finnis’ (2011: pp. 9–11, 2007) view, moral justification (or conform-
ity with the true principles of morality) defines a kind-relative standard for
evaluating law because paradigmatic instances of law – so-called “central
cases” – exhibit such justifiability. Finnis maintains that all philosophical
theorizing about kinds must start with uncontroversial instances, whose regular
features invite explanation, and that the central and paradigmatic cases of law
regularly promote the common good. Both claims are controversial. But even if
they were true, Finnis doesn’t explain why only some regular features of central
cases but not others define kind-relative standards of evaluation (on this point,
see Murphy 2012: pp. 50–51). It is a regular feature of paradigmatic law that it
consists of rules directed at imperfect, uncooperative human beings, and, so,
includes highly coercive and punitive measures. But that fact does not bear any
obvious connection to law’s constitutive virtues. It is not as though law is better
qua law if it is highly coercive/punitive, for we can imagine good law in

a society of angels (or even a society of better-than-average beings) that isn’t all
that punitive (cf. Raz 1999: p. 159).55 So, the question of why law’s moral
virtues make it good as law remains unanswered, even if we accept Finnis’ point
about the significance of central cases to philosophical theorizing about kinds.
An alternative and more popular approach to explaining why the moral merits
of law might be constitutive merits treats law as a functional kind. On this
approach, a kind’s constitutive virtues are characteristics that make instances
better at performing the kind’s essential function(s). Murphy (2005, 2006)
explores two types of functional explanations for the weak natural law thesis,
developing themes he finds in Moore (1992) and Alexy (2010a). The first
explains a kind’s essential function in terms of some “characteristic” perform-
ance by its instances. Whether a function is “characteristically” performed
depends on “not just statistical frequency” but frequency relative to “normal”
background conditions (2005: pp. 26–27). Elsewhere, I have expressed doubts
about any such account of function-attribution especially insofar as we want
functions to explain constitutive virtues (Atiq forthcoming: pp. 14–15). To take
an ordinary counterexample, a statistically dominant use of flathead screw-
drivers around the house is prying things open, and that’s true in normal
conditions since most screws are Philips-head. But prying things open is not
the constitutive function of flathead screwdrivers; nor does it define a kind-
relative standard for evaluating instances. What makes a good flat-head screw-
driver in the relevant sense of “good” is, plainly, effectiveness at turning
flathead screws. The corresponding claim about usefulness for prying things
open (that it makes the screwdriver good as a flathead screwdriver”) sounds
artificial. Put differently, not all “characteristic functions” in Muphy’s sense are
essential or virtue-defining functions.
In any case, based on his theory of function-attribution, Murphy (2005: p. 26)
argues that the characteristic function of law is “to lay down norms with which
agents will have sufficient [moral] reason to comply.” Murphy (2006: ch. 3,
2012) offers an additional argument in support of his claim about law’s essential
function. This alternative argument relies on the idea that the law consists,
essentially, of speech acts that involve various demands. We’re told that the
law’s specific demands – for example, “drive on the right!” – implicitly claim
(or presuppose) that subjects have decisive reasons to comply (cf. Alexy 1999).
Murphy maintains that such speech acts are defective as demands when their
content and presuppositions are false. Relatedly, law is defective as law (i.e., as
a system of norms making various demands on agents) when it fails to give
55
Raz relies on the “society of angels” scenario to show that coercion isn’t essential to law. My
point here is that coerciveness is also not one of law’s constitutive virtues, even though law is
characteristically coercive.

agents decisive reasons for compliance. This view is vulnerable to several

objections. For one, it’s not obvious what justifies attributing to law (as opposed
to, say, legal officials) any implicit claims, especially, the kinds of claims that
interest the natural lawyer – namely, that there are decisive moral reasons for
complying with the law. Moreover, claims and assertions can be insincere. In
such cases, the falsity of what’s represented as being the case needn’t render the
speech act defective as a speech act given the speaker’s goals, though of course
the act might be morally criticizable or defective in some other kind-
independent sense. Indeed, Murphy’s crucial claim that “lying and bullshitting
are intrinsically flawed forms of asserting, defective in their kind” seems to me
to stand in need of greater defense.56
Even if we were to grant the natural lawyer’s claims about law’s function,
whether based on some characteristic performance or speech act theory, the
view confronts a very basic problem. It doesn’t explain why key ingredients of
the Rule of Law, like generality and publicity, count as constitutive virtues of
law. Highly specific rules informing named individuals how to act in one-off
situations can give agents “decisive reasons to comply,” at least when backed by
the threat of sanction. That is, a pervasively nongeneral system of laws seems
perfectly capable of performing law’s alleged function. Even in the absence of
coercive threats, it’s at least conceivable that there might be moral reasons to
comply with highly particular norms.57 So, Murphy’s account of law’s function
does not explain why generality is a constitutive legal virtue. This result is in
a way unsurprising because explaining the Rule of Law is not the principal aim
of natural law theorists. But the point is precisely that the explanation is
necessary. In general, the functions of functional kinds explain paradigmatic
kind-relative virtues (see 2.5). And so, a theory of law as a functional kind
should be evaluated for how well it explains the relatively uncontroversial
constitutive virtues of law like generality, nonretroactivity, and publicity –
that is, the core of the Rule of Law about which positivists, non-positivists,
ordinary jurists, and laypersons seem to agree. Unless it meets this basic
criterion of adequacy, the theory, along with its implications regarding less

56
Similarly, Robert Alexy (2021: ch. 3) argues that law necessarily claims moral “correctness” and
the claim’s falsity renders law defective. Alexy considers the objection that law’s claim may be
“nothing more than an expression of an illusion or an error.” But his response is, to put it frankly,
obscure. As far as I can tell, there is no real discussion of the possibility that if I don’t intend
a sincere speech act, it’s content being false needn’t render it defective as a speech act. For further
discussion of the importance of sincerity in the productive intentions that bear on kind-relative
evaluation, see Atiq (forthcoming: 20–21).
57
If moral particularism is true, then there are no general, exceptionless principles that determine
the rightness or wrongness of actions in particular situations. See, e.g., Dancy (2004).

obvious constitutive legal virtues such as justice or reasonableness, will seem

suspect.
Consider, finally, a more recent attempt by Crowe (2019: p. 218) to ground
law’s essential function in “authorial intentions and social acceptance,” a style
of explanation that works well in the case of created artifacts with intended
functions. Crowe suggests that given the intentions of the primary authors and
subjects of legal systems, the essential function of law is to be “generally
regarded by members of the community as conferring obligations” (p. 174).
Additionally, Crowe maintains that the injustice or irrationality of a law renders
it defective qua law by undermining its effectiveness at generating a robust
sense of obligation amongst persons. As I’ve argued elsewhere, it’s unclear how
a weak natural law thesis is supposed to follow from this functional thesis, given
that unreasonable laws might be, and often are, extremely effective at generat-
ing a sense of obligation in an unreasonable community (Atiq 2020b). That is, it
won’t always be true (or true in every community) that the moral merits of law
make the law effective at performing its alleged function. However, it’s tempt-
ing to suppose that kind-relative virtues are virtues of the kind in a broad range
of actual and possible scenarios. To illustrate, in any situation where we find
knives, being able to cut things well makes the knife good as a knife.
A functional explanation of law’s kind-relative virtues should thus modally
generalize, but Crowe’s does not.
The above criticisms notwithstanding, these proposals exhibit the right
general form to explain why law is a goodness-fixing kind. For reasons high-
lighted in 2.4, if law is a functional kind with some normative function –
a function derived, perhaps, from the intentional social activities that produce
law – it would plausibly explain our ability to evaluate law as law. And so, the
problems I’ve raised above may only arise for specific versions of natural law
theory, a point I shall return to shortly.
For now, consider how such theories fare in terms of addressing other
explanatory demands introduced in Section 2. On the one hand, they seem
tailormade to explain why radically wicked or unreasonable social orders
challenge our legal classificatory judgments. It’s difficult to classify such social
orders not just because they are atypical but because of a general fact about
goodness-fixing kinds, including knives, clocks, poems, and, indeed, law.
Genuine instances of such kinds must perform their kind-relevant function
well to some degree, though it’s very hard to specify a precise threshold (2.4).
In the case of law, the relevant function is securing justice and reasonableness,
and so it is hard to know precisely how unjust or unreasonable a social order can
be before it fails to qualify as a legal order.

On the other hand, it’s less clear how natural law theory explains aspects of
legal reasoning highlighted by Dworkin and others. Consider the classification
of principles such as nemo iudex in causa sua as a source of law or, even, as
a priori law. The moral defects of law may be legal defects, or make the law
defective as law, but why should that entail the a priori legality of any moral or
rational principle? This seems to me to be a symptom of a larger problem: it isn’t
clear how the strong and weak natural law theses relate to the classification of
individual rules and principles under the concept of law. Natural law theorists
have traditionally focused on law as an institution, or on what makes an entire
system of rules a legal order, while being relatively less concerned with
articulating general “criteria of legal validity” for specific rules or principles
within legal systems. But we employ the concept of law to refer to both systems
of rules and specific rules of law, such as those derived from statutes or court
decisions. Presumably, there is some connection between these two ways of
using the category.
One possibility is that natural law theory can simply absorb what Hart (or any
other positivist) says about the social criteria of legality (e.g., derivability from
the customary rule of recognition), albeit subject to a moral constraint on the
existence of a legal order.58 But then the theory risks inheriting the problems
Hart faces in relation, say, to theoretical disagreement (more on this in
a moment). Alternatively, the theory might by supplemented with an independ-
ent account of adjudication that sheds light on the nature of legal reasoning
(Finnis 2011; Crowe 2019). For instance, Crowe (2019: p. 196) argues that
a judge’s role in interpreting law is to “interpret legal materials in such a way as
to render them non-defective as law.” As a consequence, judges must be
sensitive to law’s purpose and function. If, ex hypothesi, all law constitutively
aims at justice or the common good, and if judges are entitled to consider law’s
purpose in figuring out what the law is, we have the beginnings of an explan-
ation for why moral principles might be regarded as a form of law: the content of
such principles constrains the content of individual legal rules at least as
formulated by judges.
Still, the proposal as sketched leaves several questions unanswered. Why
assume that a judge’s professional responsibility is to “improve” the law by
making legal pronouncements which render the law “non-defective”? Why not
embrace what seems to be the more standard view – that a judge’s sole
responsibility is to take a clear-eyed view on what the law is, no matter how
defective it might be “as law” or in any other sense? Crowe’s conception of the
judge’s role is controversial to say the least. Moreover, even if we assume that

58
For discussion on this point, see Murphy (2005).

judges are entitled to take the overarching moral purpose of law into account in
discovering specific laws, it isn’t obvious why that would entitle jurists to
declare moral principles a priori law even in the absence of formal promulgation
(cf. Aquinas, Summa Theologiae).
Perhaps relatedly, it’s not obvious whether natural law theory sheds
enough light on a central feature of legal reasoning in complex legal systems –
persistent theoretical disagreement – to constitute a sufficient advance on legal
positivism. For even if law either essentially is or aspires to be an “ordinance of
reason” (compatible, that is, with the requirements of reason and morality), it’s
unclear why jurists persistently disagree about the grounds of legality in full
awareness of a lack of intra-systemic consensus on the question. Consider, for
instance, a natural law theory that follows Hart in its specification of the social
criteria of legality (derivability from the customary rule of recognition) while
adding a moral threshold condition (which applies irrespective of the social
facts). On the one hand, the “Hartian” natural lawyer can invoke explanatory
resources that weren’t available to Hart: some disagreements about the grounds
of law persist because of persistent moral disagreement within the legal com-
munity about what justice, in fact, requires. On the other hand, the explanation
seems incomplete since participants in theoretical legal disagreements often
explicitly disavow moral motivations. Many constitutional originalists in the
United States, for instance, maintain that their account of the grounds of
constitutional law is motivated not by a sense that originalism entails morally
good outcomes; rather, they claim to be motivated by a correct understanding of
what law is and the judge’s professional responsibility.59 More generally, it
seems that persons who agree on moral matters can, and often do, disagree
about the grounds of law persistently and without conceptual confusion. So,
there is more to the phenomenon that needs explaining. And since explaining
theoretical disagreement plays such a central role in Ronald Dworkin’s theory
of law, perhaps that is where we should look next for insights into law’s nature.

3.2 Dworkinian Interpretivism and the One-system View

Dworkin’s (1986) account of law takes ordinary legal reasoning as its starting
point and is expressly designed to accommodate the desiderata described in 2.2
and 2.3 – in particular, the role of moral principles in law discovery and
persistent theoretical disagreement among jurists. Given its complexity, the
account requires some setup.
Dworkin agreed with the positivist that legal facts (such as facts concerning
a rule’s legality or the existence of legal rights and obligations) depend on certain

59
See, e.g., Baude and Sachs (2019).

nonmoral, social facts: roughly, facts concerning the actions of various institutions
(e.g., a legislature or law-making body) and the desires and beliefs of agents
operating within those institutions. The relevant social facts might include facts
concerning the socially embraced rules of recognition, change, and the like.
However, Dworkin maintained that any derivation of law, or legal rights and duties,
from such social facts involves “interpretation” of institutional practice and, relying
on his general theory of interpretation, defended a non-positivist metaphysics of law.
On Dworkin’s view, whether one is interpreting a poem or a painting or indeed,
the social practices that result in law, interpretation necessarily involves treating an
object of interpretation (e.g., a set of sentences) as an instance of a normatively
significant kind (e.g., a sonnet with aesthetic properties). Instances of normatively
significant kinds can be ranked as better or worse based on kind-relative normative
criteria. Moreover, the process of interpreting an object as an instance involves
attributing meaning, purpose, and content to it “in order to make of it the best
possible example of the form or genre to which it is taken to belong” (Dworkin 1986:
p. 52). Interpretation is always constrained, to some extent, by the non-normative
features of the object of interpretation. In the case of a sonnet, an interpretation must
be responsive to the text, some range of meanings to which the terms and expressions
are susceptible, and the intentions of the author – features Dworkin discussed under
the rubric of a “dimension of fit.” But a good interpretation imputes content that
elevates the object of interpretation by representing it as a good instance of the
relevant kind, and even if, for example, the imputed content cannot be located fully
in the intentions of the agent(s) who produced the object. In the case of a sonnet, an
interpretation that renders the sonnet more lovely but at the cost of fidelity to the
intentions of its author might be superior to an interpretation constrained entirely by
authorial intentions. Hence, evaluative considerations define a “dimension of justi-
fication” that, Dworkin argued, is an essential element of ideal interpretation.
In the case of legally relevant social practices, the normatively significant
kind to which these practices allegedly belong (when imbued with legal con-
tent) is “a general justification for the exercise of state coercion” (1986a:
p. 190). That is, the social facts interpreted as resulting in legal duties, rights,
and responsibilities (including propositions of the form <the law requires
that . . .>) imply an explanation of why the state is justified in coercively
enforcing its rules against its subjects. Naturally, this justification will be
more or less plausible depending on the goodness or justice of legal rules and
requirements. Moral principles, therefore, operate as a constraint on legal
interpretation.60 Dworkin maintained that morality constrains the interpretation

60
On the relevant set of principles, including the master principle of integrity, see Dworkin (1986a:
pp. 90–93).

of any action or aspect of institutional practice that produces law – including, for
example, a prior precedent or judicial ruling. That is, any interpretation of what
the law requires in any context must be evaluated for how well it contributes to
the overall justiﬁcation for the state’s coercive authority.
Note that there is a way of construing Dworkin’s claims in exclusively
epistemic terms. What he offers is a heuristic for adjudication, an account of
how judges should go about “discovering” law in light of social practice facts
that doesn’t necessarily track the law’s metaphysics. However, any such con-
strual would underestimate the radical nature of Dworkin’s thesis. On the
intended metaphysical construal, there is nothing more to legal facts – facts
concerning, say, the legality of a rule – than facts concerning the best interpret-
ation of social practice. The fact that the law obliges drivers to drive on the right
is in some sense reducible to the fact that the best interpretation of what we do
around here is that we expect and coercively enforce driving on the right. And
the latter fact concerning the best interpretation is grounded in both non-
normatively characterized social facts (the choices and intentions of institu-
tional actors) and moral facts (our institutional practice is portrayed in a morally
good light). Hence, legal facts are partly grounded in moral facts.
Like the natural law theorist, Dworkin conceives of legally relevant social
practices as having a normative role: namely, as contributing to a case for
justiﬁed state coercion. But his reasons are radically different. Dworkin is
motivated by a certain conception of interpretation within legal practice and
its metaphysical implications – that is, its implications concerning the nature of
legal facts.61 These reasons are the source of the view’s distinct advantages but
also some of its unique vulnerabilities.
Let’s start with the advantages. The view straightforwardly explains why
judges reach for moral principles when interpreting prior precedent and institu-
tional practice. Judges engaged in interpretation are keen to cast the law in its
morally best light, even if that means going beyond the manifest intentions and
actions of agents. It was no accident, for example, that even though there was no
prior judicial opinion or statute that would have prevented a murderer from
inheriting under a victim’s will in Riggs v Palmer, the court nevertheless held
that principles of justice “constrain” what the law requires. It’s less clear how
Dworkin’s view explains the historical treatment of moral principles as a priori
law, but we can develop a plausible story for at least some such principles: moral
principles, insofar as they operate as conceptual constraints on what the law
could be, are akin to “laws of law.” If, for example, law cannot permit largescale
61
Dworkin differs also in his metaethics – in particular, his account of the nature of moral facts.
See, e.g., Dworkin (2011). But we can ignore this difference for now. On Dworkin’s metaethical
quietism, see McGrath (2014).

torture and genocide (because no institutional practice that included such

permissions would be justified in its coercive activity or worthy of obedience),
then it seems fair to say that the fact that a genuine legal system does not permit
largescale torture and genocide is appreciable a priori, and without regard to any
specific facts about social practice.
Furthermore, Dworkin’s view offers a nice explanation of persistent theoret-
ical disagreement. It’s possible that disagreements about the determinants of
law are driven by persistent moral disagreement regarding what would justify
state coercion. On this picture, constitutional originalists and non-originalists in
the United States disagree about the grounds of American constitutional law
precisely because they disagree about what legal content casts American law in
its “morally best” light. However, as I suggested earlier, participants in these
debates often don’t view their disagreement as explained by moral disagree-
ments. Theoretical legal disagreements seem to persist in the face of moral
consensus. Fortunately, an alternative diagnosis falls out of Dworkin’s view,
one that relies on his central claim that the concept of law is an interpretive
concept. In interpretive disagreements, what secures a shared subject matter is
consensus regarding the object of interpretation, which in the legal case is a set
of social practices. An interpreter might ignore moral considerations and the
dimension of justification altogether when interpreting social practice, and
although the resulting interpretation would not be a very good one, it would
still count as an interpretation of the relevant subject. On this view of the
disagreement between originalists and non-originalists, the originalist is por-
trayed as confused not about the social facts, morality, or, even, the concept of
law62 but about the nature of ideal interpretation.
Despite these explanatory advantages, the view is vulnerable to challenge on
multiple fronts. Some critics have questioned Dworkin’s theory of interpret-
ation, charging him with overestimating the role of evaluative considerations in
the interpretation of language and law (Marmor 2011, 2005). Since judges lack
the expertise, time, and political authority to regularly engage in the kind of
morally charged analysis Dworkin had in mind, both the empirical claim that
they do pervasively and the normative claim that they ought to are questionable
(Sunstein 1996).63 A separate challenge stems from the fact that for a theory of
law to be plausible, it needs to explain what sets legal norms apart from moral

62
Perhaps all we need to know to be competent with the concept of law is certain uncontroversial
extensional truths involving it along with the fact that the concept’s application involves
interpreting a legally relevant set of social practices. However, we needn’t take a view, here,
on what determines concept possession and concept mastery.
63
It is no accident that Dworkin (1986: pp. 87–88) names his hypothetical judge who interprets the
law correctly “Hercules.” The task of making moral sense of social practice, including the entire
legal history of a given jurisdiction, is, indeed, herculean.

norms, given that not every moral duty is legislated, enforced, or relied on by
lawyers. Since Dworkin wasn’t very precise on how considerations of fit and
justification are balanced, the theory’s extensional implications – its implica-
tions about the content of the law within jurisdictions – are hard to evaluate.64
One relatively clear implication seems counterintuitive: the legal facts – that is,
the content of the law within a jurisdiction – may be entirely inconsistent with
subjects’ beliefs about the law, since subjects who are morally mistaken may be
radically cut off from the “morally best” interpretation of social practice (Raz
1985: p. 309; Marmor 2011: pp. 90–92).65
Recently, theorists who share Dworkin’s emphasis on legal reasoning, though
not necessarily his controversial account of interpretation, have argued that
ordinary legal practice supports the view that legal norms are identical to
a subset of moral norms (Greenberg 2014; Hershovitz 2023; Ryu 2024).66 To
illustrate based on Greenberg’s (2014) development of the “one-system view,”
legal interpretation involves “moral reasoning about what is [morally] required
as a consequence of . . . relevant lawmaking actions,” rather than reasoning
about what would make an entire system of coercion “the best it can be” given
the constraints of fit and justification (pp. 1303–1304). On this picture, legal
requirements are supposed to be identical (or reducible) to those moral require-
ments (concerning, say, rights and responsibilities) that result from the actions
of specific institutions. Nevertheless, what we morally should do given institu-
tional choices and actions can be inferior to what we morally should do in an
ideal institutional context, so there remains on this view a meaningful distinc-
tion between moral and legal norms (whether it is a sufficient distinction is
debatable, however, as we’ll discuss). Other defenders of the “one-system
view” have explained the legally relevant subset of moral norms differently,

64
On this point, see Finnis (1987).
65
It’s worth noting that Dworkin’s view entails two kinds of radical legal error: (1) an entire
community could fail to appreciate the legality of a norm; or (2) an entire community could
wrongly take some norm to be law. I think the second upshot, emphasized by Marmor (2011,
ch. 2), is more implausible than the ﬁrst. See discussion in Atiq (2020a: pp. 23–24). Raz’s (1985)
critique of these implications of Dworkin’s view is part of a more general critique based on the
thesis that law necessarily aspires to be authoritative – that is, it purports to give subjects
knowable peremptory reasons for action. Raz argues that free-standing moral principles are
incapable of being directives, and insofar as their application involves moral reasoning, they
cannot give subjects peremptory, content-independent reasons for action. But the claim that all
laws must take the form of knowable and authoritative directives is highly suspect, as is the claim
that legal imperatives cannot invite moral reﬂection from those who are subject to them. I suspect
Raz mistakes generic truths about legal norms for necessary truths. For discussion on the
peremptory status of legal directives and moral reasoning, see Kramer (2004: p. 23).
66
Dworkin (2011: p. 403) seems to have favored a related thesis in his later work. On the continuity
between Dworkin’s interpretivism and the one-system view, see Nye (2021).

while sharing the core assumption that legal and moral norms form a single,
uniﬁed body of norms.67
On what basis might one conclude that ordinary legal practice favors the
“one-system” thesis? In several papers, Greenberg (2004, 2008) offers an
intriguing argument. He argues that while social facts concerning, for example,
the choices and intentions of legislatures play a role in determining the law,
a core assumption of adjudicative practice (one he endorses) is that the law-
determining social facts stand in a special relationship to facts concerning what
the law is. Greenberg calls this relation “rational grounding.” Roughly, the idea
is that the legal facts (concerning what the law requires) must be intelligible
given the law-determining social facts. “Intelligible” sounds like a normative
notion. To say that the law is intelligible given the social facts in a jurisdiction
sounds a lot like saying that there is something to be said in favor of the law
given the social facts. But Greenberg expressly disavows the normative inter-
pretation (pp. 190–191). He maintains that intelligibility means something like
a priori accessibility: any rational agent who knows the law-determining social
facts within the system should be able to derive, through a priori reﬂection –
from the armchair, as it were – facts about legal rules, permissions, prohibitions,
and so on.68 But if positivism were true, then the legal facts wouldn’t be
derivable a priori from the social facts. The argument for this claim is subtle
but turns primarily on the fact that the social facts – concerning people’s
behavior, customs, and so on – are always compatible with a range of competing
rules or principles.69 Legal positivism would have to be (surprisingly) some
kind of a priori conceptual truth, Greenberg argues, for there to be anything like
an a priori connection between legal content and the social facts. And quite apart
from his critique of positivism, Greenberg suggests that the rational intelligibil-
ity of law favors the one-system of view. For many moral facts are derivable
a priori from social facts – that is, what we morally ought to do, given the

67
Hershovitz (2015, 2023: p. 192) seems to be moved by the thought that legal rules and
obligations couldn’t be “normative” in any sense besides the sense in which moral rules
and obligations are normative. He suggests that of the moral obligations that qualify as
legal obligations, some essentially depend on institutional choices, while others are simply
moral obligations that are enforceable in court (Hershovitz 2015: pp. 1202–1203, 2023:
pp. 84–91, 182–183).
68
There might be other precisiﬁcations of Greenberg’s somewhat elusive concept of “rational
grounding.” I think my interpretation renders the argument interesting and worthy of engage-
ment. For an alternative take, see Chilovi and Pavlakos (2022).
69
The reasons are related to Wittgenstein’s puzzles about rule following (see Kripke 1982). To get
a sense of the reasons, consider the history of your practice involving the rule for addition. Your
behavior in adding up numbers is consistent with a rule of quaddition, which operates like
addition but only for numbers up to some arbitrarily large number that you’ve never “added”
before. For a similar point about social practice being compatible with many different legal rules,
see Greenberg (2004: p. 182).

choices of people around us, seems knowable or understandable through

rational reflection alone. So, if we assume that legal facts just are moral
facts – that when judges reason about what law requires, they’re reasoning
about what morality requires (given the social facts) – it would explain the
rational intelligibility of law.
The argument is complex, relies on contestable premises, and has been
criticized on several fronts (see, e.g., Plunkett 2012, Neta 2004). One problem
is that moral reasoning is not the only kind of normative reasoning that is
arguably a priori; consider reasoning about what we prudentially ought to
do given institutional choices. So, it isn’t obvious why the argument favors
a reduction of legal facts to specifically moral facts.70 Additionally, Greenberg
provides very little support for the claim that judicial practice assumes the
rational intelligibility of law.71 It’s certainly not the case that jurists explicitly
endorse any such general claim about law. Contrast, for instance, the willing-
ness of legal officials to treat select principles of morality and rationality as
“a priori law.” Moreover, what looks like a priori reasoning within a domain is
often, simply, reasoning based on implicit assumptions (assumptions concern-
ing, say, the grounds of law or some bridge principle linking social facts to
specific legal facts) that needn’t be a priori true but can be taken for granted for
a variety of reasons, such as being part of the common ground. Perceptual
reasoning arguably operates this way. When I infer that I am currently in Ithaca,
New York based on what I observe, I instinctively assume the falsity of various
skeptical hypotheses that are neither inconsistent with my perceptual observa-
tions nor a priori false.
But perhaps the biggest worry about Greenberg’s conclusions is that the
inferred unity of law and morality is inconsistent with ordinary legal intuition:
all-too-familiar legal obligations don’t seem to correspond to moral obligations,
whether construed as all-things-considered moral obligations or pro tanto. For
instance, it seems natural to think that many legal officials were legally obliged

70
To be fair, Greenberg acknowledges this possibility and explicitly invokes normative or value
facts in the argument, rather than moral facts. But his ultimate view of the nature of legal facts,
the moral impact theory, is cashed out in speciﬁcally moral terms.
71
In a similar vein, Hershovitz (2023: p. 192) maintains that when legal actors make claims about
legal rights and obligations in court, they make claims about who morally owes what to whom.
Unfortunately, he offers scant evidence in support of this claim about ordinary legal practice. As
far as I can tell, Hershovitz seems impressed mainly by the use of deontic and normative
terminology in law and our practical goals in litigation. But we often speak in deontic terms –
that is, in the language of obligation and right – without intending anything moral. Chess players
might instruct a novice in terms of moves that ought to be made. That doesn’t show that chess
players intend a moral claim. In fact, Hershovitz acknowledges that ordinary legal actors
routinely distinguish legal from moral obligation but insists that ordinary legal actors must be
confused or speaking loosely (pp. 10–13, 109–111; cf. Hershovitz 2014: pp. 1191–1192).

to enforce the Fugitive Slave Act during the antebellum period in the United
States, even though they weren’t morally obliged (cf. Finnis 1980). Likewise,
moral and legal obligations seem to come apart in various mundane and morally
neutral cases. Dindjer (2020: p. 193) offers a nice illustration:

Plausibly one very often has pro tanto obligations to comply with
[traffic] rules. But it is difficult to imagine that, for every driver under
all possible circumstances, this will be true – difficult to believe, for
example, that, on an obviously deserted country road with no danger
present, an experienced driver invariably violates a [moral] obligation in
driving before the traffic lights have turned to green, or not indicating
before a turn.

The kinds of moral considerations Greenberg and others invoke to explain

obligations to obey the law in such cases – concerning, for instance, the
importance of democracy, fairness, coordination, or the vindication of legitim-
ate expectations – turn out to be far too limited in scope to guarantee a perfect
correspondence between moral and (relatively trivial) legal obligations (p. 194).
Note that these objections based on the apparent divergence of legal and
moral obligation do not beg any questions against the one-system theorist. We
needn’t assume that ordinary intuitions about law and obligation must be
correct. The objection simply invites proponents of the one-system view to
explain why widely shared intuitions of legality turn out to be mistaken. After
all, we made similar demands of positivists. And unfortunately, a plausible error
theory that can charitably explain why our legal intuitions might be systematic-
ally distorted in the highlighted cases does not fall out of the one-system view
(see discussion in Atiq 2020a).
A related line of objections appeals to instances of widespread and uncom-
plicated legal agreement (Watson 2024, Leiter 2009: p. 1248). When practi-
tioners of law reason about the consequences of, say, the statute of limitations,
they don’t generally deliberate on the moral question of how the statute affects
what we – plaintiffs, defendants, judges, and others – should do. Instead,
lawyers and judges apply the statute’s bright-line rules specifying when claims
can be brought to court very strictly. Yet, surely, it is extremely implausible to
think that strict application of the statute of limitations in all cases is morally
required (Watson 2024: pp. 75–76). More generally, Watson argues that if
a view like Greenberg’s were true, we would expect to see moral reasoning in
legal practice far more often than we do. Recall that interpretivism was origin-
ally motivated, by Dworkin and others, based on an alleged consistency with
ordinary legal practice, whereas the one-system view seems revisionary. And
non-positivists cannot have it both ways: they cannot simultaneously insist that

philosophers of law need to take the assumptions internal to legal practice

seriously while disregarding inconsistences as explanatorily irrelevant.
Ultimately, the question boils down to whether the theoretical benefits of moving
from a positivist paradigm to a complex and more counterintuitive theory of law,
such as interpretivism or the one-system view, outweigh the costs. Simpler and
more commonsensical paradigms aren’t always correct, of course. But it’s far from
clear that the explanatory gaps in, say, Hart’s account of law warrant a paradigm
shift as radical as the one proposed by Dworkin and his followers. Indeed, it is
telling that the views we’ve discussed in this section take on commitments that don’t
appear to have a clear explanatory payoff. Consider, for instance, Dworkin’s
identification of the legal facts with facts concerning the best interpretation of social
practice. Why, one wonders, is the law-entailing interpretation the best one – that is,
the one that balances considerations of fit and justification “just right”? Why not
think, instead, that interpretation in a more relaxed enterprise: that the legal facts
reduce to facts concerning a “good enough” interpretation of social practice? After
all, Dworkin invites us to take the analogy with literary theory seriously, where
competing interpretations are often regarded as equally good (cf. Fish 1982).72
Dworkin’s reason for emphasizing a so-called “best” interpretation was his assump-
tion that every legal question (such as the question of what prior precedent requires
in a case) must have a uniquely correct answer, at least in principle (1986a: pp. 119–
115). If interpretations need only be “good enough” – that is, balance considerations
of fit and justification sufficiently well relative to some arbitrary threshold – to
justify legal norms, there may not be a uniquely correct answer to every legal
question. Inconsistent interpretations might satisfy the “good enough” threshold.
But Dworkin did very little to justify his “one right answer” thesis, whether in terms
of ordinary legal practice or the nature of interpretation more generally (Leiter 2004:
p. 175; Kramer 2007b).
Nevertheless, there is much to learn from Dworkin’s proposal and views
inspired by it. Among other things, Dworkinian interpretivism suggests
a promising recipe for explaining theoretical legal disagreement: appeal to
a feature of the concept of law that ensures that individuals with radically
different accounts of how social practices make law can genuinely, and without
conceptual confusion, disagree about what the law is. As discussed earlier in the
section on methodology, we need some understanding of the way the legal
concept works, since we use it to fix a target of philosophical analysis. The

72
Describing the debate between “intentionalists” and “anti-intentionalists” in literary interpret-
ation, Kubala (2019: pp. 509–510) notes that “for the anti-intentionalist” there can be “a plurality
of acceptable interpretations.” The idea that there is one value-maximizing “super” interpretation
seems to be a minority position in literary theory.

views we shall explore next take the nature of the ordinary concept and the rules
governing its application as their primary focus.

3.3 Dual-Character and Aggregative-Cluster Concepts of Law

Natural law theorists and proponents of the “one-system” view lead with their
metaphysics. Their starting point is a set of moral or legal facts. Even Dworkin,
for all his emphasis on the claims about law made by officials and other
participants in legal practice, was ultimately concerned with what those claims
reveal about the nature and grounds of legal norms, construed as an objective
reality, and not legal language per se. In fact, he derided what he took to be the
overly semantic focus of certain forms of legal positivism (1986b: p. 46).
Some contemporary versions of non-positivism take legal language to be an
important subject of investigation in its own right. If a non-positivist metaphysics
of legal norms falls out of such views, it is not because clarifying the grounds of
an objective order of norms is the motivating goal. Like Dworkin, proponents of
such “language-first” views are especially concerned with explaining the nature
and persistence of disagreement about law’s relationship with morality. Their
explanations proceed by way of a straightforwardly semantic (or meta-semantic)
account of the ordinary concepts associated with legal terms and expressions.
One such account that has recently gained traction among philosophers
engaged in the empirical study of legal language takes the ordinary concept of
law to be a “dual character” concept (Flanagan & Hannikainen 2022; cf. Alexy
2010b). On a popular (though by no means uncontroversial) view in the philoso-
phy of language, concepts are individuated by their application criteria. Dual
character concepts are alleged to have “distinct criteria [of application], invoking
concrete and abstract properties, respectively, that may yield opposed member-
ship verdicts” (p. 168). Dual character structure has been proposed for concepts of
social roles (DOCTOR, SCIENTIST) as well as concepts of artistic artifacts (PAINTING,
NOVEL) (Knobe et al. 2013; Liao et al. 2020). The criteria for being a doctor might
include passing a board exam or being licensed by an appropriate authority or
obtaining a medical degree. But we often invoke more abstract and normative
criteria to mark what makes someone a doctor in the unqualified or “full-fledged”
sense. This is reflected in such ordinary claims as “only a licensed medical
professional who desires to heal or help others qualifies as a true doctor” or
“real doctors help people.” In a recent study, Flanagan and Hannikainen (2022)
found that laypersons seem to endorse analogous claims about law. When
questioned about the legality of morally wicked rules in a hypothetical jurisdic-
tion, participants in this study regularly distinguished morally wicked “laws”
from “true laws,” or laws in the full-fledged sense. Researchers have noted

intriguingly consistent results across a range of legal cultures (Hannikainen et al.

2021). The phenomenon calls for an explanation, and Flanagan and Hannikainen
argue that it is explained by dual-character structure: the legal concept’s applica-
tion criteria include both social and moral characteristics that yield inconsistent
membership verdicts. Questions remain whether such studies are tracking ordin-
ary claims about law as opposed to claims participants are only inclined to
endorse when prompted by investigators.73
Other defenders of the dual character theory have relied on genealogical
observations concerning the marked inconsistences in the way that legal lan-
guage has been used over time. Almeida (2023) suggests that the historically
contested status of the principles of morality within ordinary legal practice is
explained by the dual character theory. He argues that for various sociological
reasons, the salience of the two senses of the term “law” – the moral and the
descriptive – has varied, and that this variance explains why earlier generations
have considered certain principles of rationality or morality to be law in virtue
of content alone, whereas analogous assumptions in moderns times are far more
controversial. Relatedly, the dual character theory explains why our intuitions
about legality are pulled in different directions when we encounter rules that
satisfy only one of the two senses of the term. Similar classificatory puzzles can
be generated using other dual character concepts: someone licensed to practice
medicine but who intends to cause extreme harm to patients puts analogous
pressure on the ordinary concept of a doctor.
Unfortunately, the dual character theory remains underdeveloped. We aren’t
told precisely how the social and moral senses of law relate. Dual character
structure is supposed to be distinct from polysemy of the sort exhibited by
words like “break” or “star.” So, if there are two senses of the term “law,” they
presumably bear some relationship that ought to be clarified. Among other
reasons, polysemy tends to be language-specific, whereas dual character struc-
ture is supposed to track some more general and cross-cultural feature or
tendency in our cognitive scheme. One option for the dual character theorist
is to lean on the account proponents of the one-system view give of the
relationship between the moral and social conditions of legality: the moral
condition, when satisfied, turns, in part, on the social condition. For instance,
if legal rules must give agents moral reasons for compliance, the reasons may
turn in part on the fact that law is a shared social commitment (cf. Ryu 2023).
But this phenomenon doesn’t generalize to other concepts that are supposed to
exhibit dual-character structure, such as the concept of a doctor.

73
See Plunkett and Philips (2023), who argue that the results might be driven not by dual meanings
but contextual factors.

Another option would be to characterize the relationship between the moral and
the social criteria of legality in terms of “aggregative clustering” (Atiq 2020a).
Aggregative cluster concepts are concepts whose application involves an imprecise
“aggregation” of distinct properties exhibited by members: an object falls under
such a concept just in case it exemplifies to a sufficient (albeit imprecise) degree the
associated properties (see Kovacs 2018; cf. Hedden & Nebel 2024). For instance,
the concept RED applies to colors based on some combination of hue, chroma, and
brightness, but the principle of combination is not precise enough to yield clear
verdicts for every shade of color. More generally, aggregative cluster concepts are
associated with clear and indeterminate instances. For instance, the concept BIGGER
THAN applies to pairs of objects based on properties of volume, length, and mass.
The ingredient properties can converge and result in easy comparisons, but they can
also diverge in ways that lead to indeterminacy.74 Nevertheless, concepts of redness
and being bigger track objective similarities across members.
I have suggested in prior work that the concept of law may integrate in
similarly imprecise yet principled ways the moral and social properties of
rules.75 Borrowing from Hart, suppose that the relevant social property is just
the property of being a rule that’s derivable from the rule of recognition embraced
by a community from the internal point of view (i.e., with the requisite normative
assumptions). The moral property might be the property of being a good or just
rule. The key idea is to see these properties, when instantiated together, as
determining a more complex and somewhat indeterminate property – perhaps
the normative property of being sufficiently well-supported by a select class of
reasons for following rules. One possibility is that legal actors weigh broadly
“social” reasons for following rules as well as moral reasons in deciding whether
a rule is sufficiently well-supported to count as law.76 Rational agents regularly

74
A rigorous statement of how the ingredient criteria of such “multi-dimensional concepts” are
aggregated to yield overall judgments is beyond the scope of this volume. For problems and
potential solutions, see Hedden and Nebel (forthcoming).
75
One reviewer inquired why the “dual character” and “cluster concept” theories should be
discussed together. The latter might seem related to Dworkin’s interpretivism, especially in
light of the question I pressed earlier against the interpretivist of why the legality of a rule should
depend on the “best” interpretation of the social and moral facts as opposed to a “sufficiently
good” interpretation. The cluster concept theory may be understood as a version of interpreti-
vism with a fuzzy threshold of sufficiency. However, the main motivations for the theory – e.g.,
explaining inconsistent juridical intuitions about law, including intuitions that interpretivists
dismiss as erroneous – differ from the motivations for Dworkin’s interpretivism and are closer to
the motivations for the dual character theory. See discussion in Atiq (2020a: pp. 19–21). To
borrow an observation of Simon Blackburn’s, often what matters in philosophy is not where we
end up (our conclusions) but where we begin (e.g., what we set out to explain).
76
Valenti (2024) argues that a distinctive reason to respect socially constructed norms is that doing
so respects people’s agency as reflected in their considered commitments. Valenti describes these
reasons as “moral” in nature, but that’s beside the point. The key idea for our purposes is that the
cluster theory relies on different species of genuine reasons – e.g., Valenti’s social reasons as well

weigh different kinds of reasons for action – including reasons that flow from our
subjective attachments, such as special concern for a loved one or community
conventions or one’s life projects, as well as impartial, other-regarding moral
considerations – in deciding whether a course of action is justified relative to the
totality of their values. So, it’s not implausible to think that legal actors might be
doing something similar in the legal domain.
I confess to no longer being certain of the view’s viability as described in
prior work for reasons that will become clear shortly. I restate it here mainly to
illustrate how the aggregative-cluster model might be applied to the concept of
law, a point of some relevance to the discussion to follow, and to draw out
its non-positivist implications. Both dual-character and aggregative-cluster
accounts purport to identify, albeit at a very high level of generality, the rules
for applying the legal concept correctly – that is, in ways that entail true claims
of legality. On the dual character theory, a rule or body of rules must meet moral
conditions to count as law in at least one ordinary sense of “law.” Likewise, on
the aggregative cluster model, whether the concept of law applies to some rule
turns on its moral features. The relationship between such conceptual theses and
a metaphysical thesis concerning the nature of legality – that is, the category
that philosophers of law are interested in – is not straightforward.77 One reason
concerns our methodological observation from Section 1: the philosophy of law
is not necessarily interested in all of the ways the ordinary concept of law might
be employed; rather, the goal is to understand a sense of legality that is
consistent with certain distinctions between social orders that become apparent
upon reflection, and that can shed explanatory light on some very general
phenomena associated with legal systems. So, the question remains whether
the concept of law as characterized by the accounts we’ve discussed above can
help us address our specific theoretical needs. As I’ll explain shortly, there is
some reason to think so. But for now, note that if a conceptual thesis of the sort
discussed in this section turns out to be true, then it is extremely tempting to
think that some facts of law in the ordinary sense of “law” are explained by facts
of morality, at least in the same way that facts of bachelorhood are explained
by facts concerning gender and marital status. The onus is on the positivist
to explain why this implication, which seems prima facie inconsistent with
positivism, would be philosophically irrelevant even if true.

as, say, impartial or welfarist reasons. The aggregative cluster concept of law thus tracks
a complex normative property of rules being sufﬁciently well-supported by a subset of normative
reasons, where the relevant subset deﬁnes a genuine, if partly indeterminate, normative ideal.
77
See generally Smithson (2020), who distinguishes concept-grounding from kind- or property-
grounding.

3.4 Non-positivism without the Frills

Can we distill from the various forms of non-positivism we’ve considered
a minimal thesis that meets the explanatory demands laid out in Section 2,
while preserving as much consistency as possible with a positivist framework?
The question is worth exploring precisely because, as I’ve noted repeatedly,
legal positivism is an attractively straightforward theory of law, and we should
avoid taking on commitments that are more demanding than the desiderata
warrant.
Here’s how I propose to proceed. First, I’ll observe that the most plausible
explanation of why law – qua system of rules – is a goodness-fixing kind entails
a qualified version of the weak natural law thesis. Next, I’ll argue that our
explanation of law as a goodness-fixing kind incorporates some of Hart’s
insights about the criteria of legality and also indirectly strengthens a dual
character account of the concept of law as applied to specific rules of law.
Finally, to explain the various aspects of legal practice we outlined in Section 2,
including the role of moral principles in adjudication and theoretical disagree-
ment, we’ll need two supplemental assumptions: (1) that the social and moral
senses of “law” jointly inform the criteria of legality as on the aggregative
clustering model, and (2) that the general concept of law is a template for
jurisdiction-specific concepts with more fine-grained criteria of application.
Fortunately, these supplemental assumptions, I’ll show, can be motivated
based on our background framework for understanding goodness-fixing kinds.

3.4.1 Law as a Normative Artifact

Let us work backwards from our conclusions at the end of Section 2. As I argued
there, it is exceedingly plausible that law is an abstract artifact, and, moreover,
that if the Rule of Law – the kind-relative standard for evaluating laws – is to be
adequately explained, then the function of law must be the realization of some
very general yet limited normative ideal. This result captures, I think, the kernel
of truth in the weak natural law thesis – namely, that an essentially normative
criterion for evaluating law is, simultaneously, a kind-relative criterion of
evaluation. Put differently, some defects of law characterized in essentially
normative terms – its arbitrariness or unreasonableness, say – amount to legal
defects; they make the law defective as law. We have left the relevant normative
ideal, that is, the aspect of goodness or reasonableness at issue, underspecified,
but I’ll say more about its content shortly. For now, notice that what we might
call the “Normative Artifact Thesis” does not entail the stronger commitments
of the natural lawyer. Natural lawyers maintain that all-things-considered moral
defects – and, specifically, the ineffectiveness of law at generating full-fledged

moral obligations – make the law defective as law. But no such claim follows
from the limited conclusions we reached at the end of Section 2.
The Normative Artifact Thesis does entail a form of non-positivism, how-
ever. Recall that there are excellent reasons for embracing the threshold condi-
tion on the existence and persistence of functional artifacts: genuine instances
must effectively perform, to some degree, the artifact’s constitutive function (or
functions). And so, whether a social order counts as a legal system plausibly
depends on its ability to minimally satisfy a normative ideal the realization of
which is, ex hypothesi, law’s essential function. Put differently, the existence of
law is grounded in, and partly explained by, the existence of rules of social
organization that are to some extent, and in a restricted sense, good.
On its own, the Normative Artifact Thesis is not a complete theory of law for the
same reason that the strong and weak natural law theses aren’t. A comprehensive
theory of law should have something to say not just about the nature of law
construed as a kind of social order, but also about the general criteria of legality
that jurists use to discover specific laws. After all, we employ the concept of law to
refer to systems of rules as well as specific rules of law, and presumably there is
some connection across these different uses of the category. And so, it’s not enough
to know that the existence of a legal order depends on both social and normative
conditions; we want to know how the social and normative features of rules relate
to determine a rule’s legality within a bona fide legal system.

3.4.2 From Normative Artifacts to Dual Character Concepts

Fortunately, an account of the “criteria of legality” can be developed in several

steps. First, we leverage our explanation for the Normative Artifact Thesis –
specifically, the fact that the thesis is very much embedded in, and draws inspiration
from, positivist accounts of law. Recall that our earlier explanation of why law must
have a normative aim relied on an independently defensible thesis proposed by
positivists – namely, that law is, essentially, a system of norms that reflects higher-
order structure and that’s socially embraced on the basis of some normative
assumptions. The idea that the social activities that produce and sustain law involve
normative assumptions about law resonates, for instance, with Hart’s claims about
the internal point of view, Raz’s claims about law’s claim to authority, and
Shapiro’s claim that law, through its officials, has a moral aim. It is consistent,
also, with the fact that legal systems throughout history have offered some justify-
ing narrative for their existence. Such “characterizing intentions” of law-producing
agents are the basis for attributing to law an essentially normative function that
defines a kind-relative standard for evaluating laws. So, it wouldn’t be ad hoc to
borrow from positivists like Hart their account of the criteria of legality, albeit

subject to a normative condition. Legal rules are rules that are validated by
a jurisdiction’s socially embraced rule of recognition, though the existence of
a legal order, and, relatedly, the effectiveness of its rule of recognition at generating
law, depends to some minimal degree on the order’s normative merits.
However, we cannot rely exclusively on a Hartian view of the criteria of legality,
even supplemented by a normative threshold condition, for the reasons Dworkin
gave. No such criteria satisfactorily explain, whether in vindicating or debunking
terms, such features of legal reasoning as the treatment of moral principles as
a source of law. Moreover, throughout legal history, jurists have felt free to invoke
principles of impartiality, reciprocity, and the like as law and on seemingly a priori
grounds, when their entitlement to do so rarely seems secure on the basis of the
jurisdiction’s rule of recognition alone. Indeed, such practices have persisted in
jurisdictions with persistent disagreement about the grounds of law, and disagree-
ment, specifically, about whether the moral content of a principle, on its own,
suffices for its legality. So, the Hartian view couldn’t be complete.
Fortunately, the considerations that justify the Normative Artifact Thesis also
suggest a principled and explanatorily powerful supplementation of Hart’s account
of the criteria. Once we’ve acknowledged law’s essentially normative function,
together with the fact that this function arises in the standard way for artifactual kinds
(i.e., through the psychology of creators and sustainers), we’ve indirectly strength-
ened the case for something like a dual character account of the concept of law, at
least in its application to individual rules within a legal system. Recall that the dual
character account maintains that there are distinct but related criteria of application
for the legal concept. And dual character accounts were originally motivated based
on artifactual concepts, especially artifacts with ostensibly normative functions,
such as artworks, including plays, paintings, symphonies, and novels (Lio et al.
2020). Plausibly, the function of artworks is to be valuable in some restricted sense,
given the intentions of those involved in their production (the conceivers, creators,
and sustainers). And relatedly, there appear to be both social and normative senses of
“art,” at least when the concept is used to pick out specific instances. We sometimes
recognize objects as art simply for being housed in a museum or in virtue of being
judged as art by a community of artists, thus applying purely social criteria of
classification tied to art’s production and recognition. But it is also entirely common
to employ normative criteria based on what is plausibly art’s evaluative function.
One can coherently and without conceptual confusion refrain from calling some-
thing art, despite its social recognition as such, that isn’t appropriately moving,
interesting, or otherwise aesthetically valuable.78 Moreover, there is evidence in the
78
When employed this way, the concept ART is an essentially normative concept. To call something
art is to endorse it based on a broad set of aesthetic values and virtues. For an illuminating
discussion of the way both “practice-internal” and “practice-external” reasons, values, and

historical record of the application of art-concepts exclusively in terms of normative

and abstract (as opposed to social) criteria, even ostensibly a priori classifications of
natural phenomena entirely uninfluenced by human agency as “natural artworks.”79
Given the similarities in conceptual practices, one would expect the concept of law,
when applied to specific rules of law, to similarly involve social and normative
criteria, where the latter tracks a rule’s contribution to the realization of the normative
ideal that constitutes law’s function.
The dual character account thus pairs well with the Normative Artifact Thesis
insofar as the thesis’ justification, together with general facts about dual character
concepts, explains why legal expressions might have dual senses (so we don’t just
have to accept the dual character account on abductive grounds: as a hypothesis
that explains the linguistic data highlighted by its proponents). However, we still
need to know how the social and the normative criteria of application relate. For
reasons discussed earlier, law’s essential function, though essentially normative,
cannot be the realization of some overly specific moral ideal, for the resulting
view would impute implausible intentions to agents involved in the production of
legal orders. So, it’s not yet obvious why specific moral principles have been
regarded as law on seemingly conceptual grounds.

3.4.3 On Concept[s] of Law: The Clustering and Fine-graining

of the Criteria of Legality

One possibility is that the relationship between the social and normative criteria is
captured by the model of an aggregative cluster concept. The criterion of legality
is, always, some weighted combination of two factors: (1) how close a rule is,
given its content, to being derivable from (or entailed by) the socially embraced
rule of recognition, and (2) how it contributes to the law’s realization of its
normative aspirations. We needn’t assume, as Dworkin did, that there must be
some single “best” way of balancing considerations of “ﬁt” and “justiﬁcation.”

norms inform our aesthetic judgments, see Kubala (2021). On “art concept pluralism” and the
distinction between “conventional art” and “aesthetic art,” see, e.g., Mag Uidhir and Magnus
(2011: pp. 90–92). For a related distinction in legal theory, between internal and external
statements of law, see Toh (2011).
79
See Clark and Rehding’s (2006) discussion of the traditional view of music as “a fact of external
nature” – as sound-structures discovered by the musician – in contrast to the view of “music as
the interior moral power of human nature.” As in the legal case, one needn’t endorse such
contested claims within the practice of art to appreciate the ﬂexibility of the operative concepts.
The relevant fact to be explained is simply that the historical record is full of references to so-
called natural artworks and nature’s artistic prowess. Such claims plausibly involve the applica-
tion of art-concepts based exclusively on the values or ideals that art is meant to realize rather
than social or agential criteria. For a theory of musical artifacts based on the model of discovery,
selection, and indication by the artist (rather than literal creation), see Levinson (1980). For
a defense of the assumption that all art is the product of a successful “art-intention,” see Mag
Uidhir (2013).

Any such strong assumption would have to be motivated. But the weaker
assumption that, in general, the social and normative properties of rules together
inform legal classification has an explanatory payoff. Recall that positivist
explanations of the legality of moral principles weren’t altogether unreasonable.
The social conditions concerning, for example, what’s customary within legal
systems may not have fit the legality of moral principles perfectly given disagree-
ment among jurists. But there has always been some degree of recognition,
among significant groups of jurists, of the a priori legality of moral principles.
The moral features of such principles may have compensated for their imperfect
fit with more broadly shared customs and tradition. I say “may” and have hedged
my claims here in an effort to remain neutral on the intra-systemic question of
legal substance: whether judges were right to classify the relevant principles (or,
on the opposite extreme, socially embraced yet utterly wicked principles) as law.
The goal is to charitably explain judicial behavior as neither bizarre nor dishonest,
not to establish that some claim made by this or that judge is correct (or incorrect).
The correctness of the relevant claims is dialectically contested and not a pre-
theoretical datum. Accordingly, our explanation should be neither plainly vindi-
cating nor debunking; it should be rationalizing.
Still, it’s unclear how much progress has been made towards rationalizing
legal behavior. If the normative criteria of legality are very general and limited
(as we’ve assumed they must be if they derive from law’s essential function),
then the criteria presumably validate many different principles that are socially
embraced to varying degrees. They wouldn’t necessarily pick out, say, the
principle the court in Riggs relied on, which invalidated a claim to inheritance
on grounds of injustice to the decedent. For a contrary principle, enforcing the
claim in the absence of express statutory prohibition, might have been equally
consistent with the formal Rule of Law and the limited normative ideal it
captures. Indeed, the dissenting justice emphasized as much – that enforcing
the will as written would be in a sense fair, especially given that the criminal law
would punish the injustice at issue.80
We can solve this problem by leveraging yet another general and entirely
familiar feature of artifactual kinds. Once we acquire concepts of such kinds
(the concept of a knife, say), we easily grasp more fine-grained or precisfied
concepts (carving knife, paring knife, utility knife, army knife, and so on).
These more fine-grained concepts involve further specification of the social/
agential and functional properties that define the general category.81 So, it’s

80
22 NE 188, 191-2 (NY 1889).
81
What follows is best understood as a hypothesis about how to model conceptual combination in
the case of complex artifact-concepts, a hypothesis supported by its usefulness in explaining
categorization and reasoning.

plausible that the more specific normative criteria jurists have sometimes relied
on in deeming, on seemingly a priori grounds, specific moral principles as law
derive not from the concept of law as such (although some limited normative
principles may well derive from the general concept), but from more fine-
grained concepts of American law, Roman law, and other kinds of law. Far
from being ad hoc, the assumption is a natural one to make given the broader
theory of artifacts we’re relying on. Concepts of American law or Roman law
don’t just involve more specific social properties (being a legal order embraced
by Americans) than the general concept but also more specific normative
properties (for instance, as the US constitution indicates, the property of being
a system of rules that is not just good in terms of Rule-of-Law fairness but
conducive to “the general welfare, and . . . the blessings of liberty to ourselves
and our Posterity”).82 Concepts of normative or value-driven artifacts exhibit
precisely this structure. The criteria for being a classical, romantic, or impres-
sionist art song, involve further specification of the non-normative as well as
normative criteria for being an art song. Whereas an art song must instantiate to
some extent some very general aesthetic ideal, romantic art songs plausibly
exhibit a specific form of aesthetic goodness – a distinctively romantic aes-
thetic. Likewise, the criteria for being an expressionist painting or an abstract
painting or a renaissance painting, and so on, are plausibly specifications of the
more general non-normative and normative criteria for being a painting. Notice,
also, that it’s more plausible to ascribe relatively specific moralistic intentions to
Americans involved in the creation and sustaining of American law than it
would be to attribute such intentions to every community that has ever created
or sustained a legal order. The normative intentions that are shared across legal
systems must be very general and indeterminate; but they can be more specific
in the case of individual legal systems.
The resulting explanation of the role of moral principles in legal reasoning
might seem superficially similar to the explanation offered by “inclusive posi-
tivists” (see Section 2.2). But there are important differences, and the compari-
son will prove helpful for further clarifying the present view and its ability to
better explain judicial practice. Inclusive positivists allow that moral principles
could enjoy the status of legality within a legal system, but they insist that what
makes such principles law are contingent social facts within the system –
specifically, facts that ground the system’s more fundamental or higher-order

82
Obviously, that’s not to say that there are as many fine-grained concepts of law as there are
individual states or jurisdictions. As I discuss later, we should only posit more fine-grained
concepts when necessary to explain the conceptual practices of distinct legal-linguistic commu-
nities, and specifically based on the kinds of legal claims that participants find primitively
compelling.

laws, whose legality is a function of social conditions alone.83 Put differently,

the inclusive positivist thinks that there is a jurisdiction-relative truth of the
form “there is a rule of law (around here) that entails that moral principle x is
law,” a truth that is ultimately grounded in some degree of behavioral conver-
gence among officials in the system.84 So, for example, American officials
might embrace a rule of recognition that treats moral principles as law in
cases like Riggs. Recall from our earlier discussion that this style of explanation
seemed strained upon examination. The problem is that there is nothing resem-
bling socio-legal consensus within the relevant jurisdictions on the legal classi-
fication of moral principles. The Riggs dissent emphasized as much by
questioning whether American courts can or should behave as the majority
did. On top of that, judges who treat moral principles as law seem to be relying
on a priori (and moral) intuition, and not just sizing up social consensus in
arriving at their rulings.
On the present view, judges who find primitively compelling a proposition of the
form “moral principle x is lawAmerican” are simply relying on a conception of
AMERICAN LAW on which the proposition is a basic conceptual truth sustained by
the concept’s criteria of application being essentially moral. Our concepts are often
revealed in the propositions we find primitively compelling (think all bachelors are
unmarried). A proposition is primitively compelling if it is compelling but not in
virtue of other propositions/inferences one finds compelling (cf. Peacocke 1992;
Davis 2005; Rabin 2020). That judges our disposed to find the relevant legal
propositions primitively compelling should no longer seem mysterious now that
we’ve subsumed the disposition under a more general and familiar one reflected in
our conceptual practices involving normative or value-driven artifacts. As previ-
ously discussed, concepts with essentially normative criteria of application are easily
acquired based on our interactions with artifacts with normative functions, such as
artworks. It’s a separate question, however, whether and to what degree such
essentially normative concepts are widely shared. For example, if the concept
AMERICAN LAW as understood by the Riggs court is widely shared, that would amount
to a kind of social fact, but one that is very different from the social facts that ground
rules of law and that the Riggs court needn’t have had access to for its approach to be
rationalizable. Let us unpack these points slowly. On a plausible account of concept
possession, agents possess a concept in virtue of finding certain truths (or truth-
preserving inferences) involving the concept primitively compelling in idealized

83
See discussion in 2.2.
84
Positivists disagree about how much convergence is required to ground a higher-order rule of
law, but they agree that convergence is based on the actual observable behavior of relevant
ofﬁcials. See Hart (1994: pp. 95, 102), Raz (1979: pp. 95–96), Leiter (1995), and Kramer (2018:
p. 84).

circumstances (for example, with full information about the facts relevant to its
application). This entails that the concept AMERICAN LAW might be shared despite
plenty of actual disagreement over whether some candidate moral principle (e.g., the
Riggs principle of not letting persons profit from their own wrongdoing) qualifies as
law. Naturally, judges don’t have access to facts concerning what their linguistic
community would find primitively compelling in circumstances of full information
(about social, moral, linguistic, and other facts). A judge’s assumption that her
understanding of the concept will attract convergence in ideal circumstances (and
so qualify as “shared”) may be based on nothing more than a hunch, intuitive
seeming, or leap of faith. But that’s not a unique feature of the legal case; it is
a general phenomenon: our intuitions about sharing a concept with others (1) are
often “epistemically primitive,” (2) withstand conflicting conceptual starting points
or basic intuitions within the community, and (3) tend not to be based on a systematic
survey of past usage and present dispositions to apply associated terminology in
actual and counterfactual scenarios (see, e.g., Schroeter 2012: pp. 191–192).85
Of course, how we come to have the basic conceptual dispositions that we do
and why our intuitions about concept-sharing are often reliable turn on complex
issues in the philosophy of language.86 My strategy in this section has been to
locate the basic dispositions we find among jurists within our broader concep-
tual practices involving normative artifacts. But we needn’t resolve, here, the
nature of concepts, concept possession, or concept mastery to recognize the
basic point that the rules that govern our concepts, and that may or may not be
shared by others, are very different from rules of law, and relatedly, that our
present explanation of judicial practice diverges substantially from the inclusive
positivist’s explanation, and in ways that make it better as an explanation.
Among other things, rules of law are embraced with a greater degree of self-
consciousness (recall the importance of Hart’s “internal point of view”) and by
a select few in the linguistic community designated as “officials.”87 Moreover,
as positivists often remind us, not all rules that jurists rely on in adjudication
count as legal rules just for being relied on. Our conceptual dispositions in
relation to normative artifacts together with general norms of communication –
in particular, the fact that our basic conceptual commitments needn’t be based
85
Schroeter (2012) suggests that the reliability of these primitive appearances of “samesaying”
might be based on a willingness to adjust one’s own conception based on the fully informed
understandings and intuitions of others. Since we don’t take ourselves to be using arbitrary
stipulative categories, our private representational practices are rarely decisive.
86
The literature on concept individuation, possession, and mastery is complex. I point the
interested reader to the work of Lewis (1975), Burge (1979), Peacocke (1992), Brandom
(1994), Horwich (2005), Davis (2005), and Schroeter (2012). Rabin (2018) provides a helpful
overview of some important themes.
87
See, e.g., Leiter (2021), who describes the rule of recognition as a rule that officials “treat as
obligatory” given their actual practice.

on convergent behavior within our linguistic community – enable the present

view to explain: (a) why judges classify morally good principles as law on
purely conceptual, moral, and a priori grounds; (b) why they do so despite lack
of convergence among jurists; and even (c) why they might ultimately be
vindicated. Their dissenting peers may find the classifications primitively
compelling in idealized circumstances (e.g., in circumstances of moral
enlightenment).88 There are other important differences between inclusive
positivism and the view I’ve outlined, concerning, for instance, whether the
legality of some thin normative principles is entailed by the general jurisdiction-
independent concept of law.89
We thus have the contours of a rationalizing explanation for the role of
specific moral principles in legal reasoning, albeit an explanation whose details
might vary by jurisdiction. Can this emerging theory of law also explain
persistent theoretical disagreement? It can certainly leverage persistent moral
disagreements in explanation. Since people disagree about what justice, virtue,
and the good require, they will, presumably, also disagree about which precise
features of rules determine their legality, even if they share a concept of law with
partly moral criteria of application. Moreover, our theory offers additional
explanatory resources when theoretical disagreements about law aren’t rooted
in moral disagreements. We’ve assumed that the concept of law involves an
imprecise aggregation of broadly social and moral properties of rules. As
discussed earlier, aggregative cluster concepts are often indeterminate.
Competent use of such concepts involves understanding a range of “easy” or
prototypical applications (cf. Finnis 1980). In the case of law, the straightfor-
ward extension includes rules that are largely consistent with jurisdiction-
specific social practice and, simultaneously, morally acceptable to some degree.

88
Notice that this account leaves room for the Riggs majority and the dissent to be engaged in
a good faith disagreement about a shared subject matter, AMERICAN LAW, despite their inconsistent
conceptions of that subject in nonideal circumstances. Moreover, by leaving open the possibility
of a good faith disagreement between jurists, our account avoids having to (a) speculate about
their “true” motivations or (b) paraphrase their claims. Contrast, for instance, an interpretation of
bedrock juridical disagreements as a “meta-linguistic negotiation”; see Plunkett and Sundell
(2013b) and the discussion in 1.3.
89
Recall from our earlier discussion in 2.2 that inclusive positivists maintain that there are no moral
or essentially normative principles whose legality can be secured on conceptual grounds alone
and independently of jurisdiction-speciﬁc social facts. On the present view, at least some thin
normative ideals are legal ideals in all jurisdictions, whose legality is derived from the general
concept of law as a value-driven artifact. The ideal of the Rule of Law constrains the very
existence of a legal system. Inclusive positivists have traditionally denied that the normative
characteristics of a legal system bear on its existence. Finally, the moderate strain of non-
positivism I’ve defended in this section consists of more than just an account of the criteria of
legal validity, and my overall argument for the view differs substantially from the case
Waluchow (1994), Coleman (2001), Kramer (2004), and others have made for inclusive
positivism.

Dworkin was thus correct in thinking that all it takes to be a competent user of
the concept of law – to possess the concept as opposed to mastering it – is to
know the core of the institutional practices to be interpreted. However, compe-
tent use of the concept does not require applying some precise aggregation
principle that would decide hard cases – that is, cases involving rules whose
social and moral properties diverge radically in their legal implications.
Nevertheless, jurists may end up endorsing competing claims about the
grounds of (American, English, Roman . . .) law that are more precise (or fine-
grained) than is conceptually warranted for a range of understandable reasons.
Indeterminacy in the concept(s) of law needn’t be obvious.90 And so long as
a candidate precisification of the concept is compatible with the core of legal
practice, it might seem plausible as an account of the concept’s criteria of
application, especially if enough others in the relevant linguistic community
endorse the precisification. It is, thus, possible that participants in theoretical
legal disagreements have competing beliefs about the precise criteria of appli-
cation that ideal reasoners in the jurisdiction – those who reason correctly about
social, moral, linguistic, and perhaps even philosophical matters – will converge
on. This final step in the argument is admittedly speculative, but no more so,
I submit, than any other explanation of persistent theoretical disagreement in the
literature, a phenomenon that may well amount to one of the more challenging
puzzles in legal philosophy. Nevertheless, I hope I’ve demonstrated that the
view we’ve developed has several resources for explaining it.

***
We’ve covered a lot of ground in this ﬁnal section and so a summary might be
helpful. My primary goal throughout has been to clearly state a pared-down non-
positivist hypothesis about law and ask – both positivists and non-positivists – why
it couldn’t be true. If the view suffers from some obvious ﬂaw, presumably it will
come to light when its core commitments are summarized, and so here they are.

90
Indeterminacy certainly doesn’t follow from the mere fact that officials in a legal system don’t
agree on a precise rule of recognition. Indeed, while it’s quite obvious that socially embraced
higher-order rules of interpretation and adjudication in, say, the American legal system won’t
settle the originalism/nonoriginalism debate (since there is no actual consensus among legal
officials), it is far less obvious whether the concept AMERICAN LAW is similarly indeterminate with
respect to the debate. For reasons I’ve noted, whether and in what ways the concept is
indeterminate turns on more complex considerations than just the actual behavior and commit-
ments of legal officials. It might turn, for instance, on their dispositions to employ legal language
in idealized circumstances of full (social, moral, linguistic . . .) information. Since we don’t have
direct access to such dispositions, the best we can do is formulate a hypothesis about the shared
concept that is then tested for explanatory and theoretical adequacy. Indeed, I’ve argued for
conceptual indeterminacy based primarily on considerations of explanatory power and fit with
a broader conceptual scheme and not the mere fact of actual disagreement.

Law, construed as a system of rules, is, fundamentally, a kind of abstract

artifact: a system of rules conceived, adopted, and sustained through purposive
agential activity. Like other such artifactual kinds, law has an essential or
constitutive function: the realization of a normative ideal. I haven’t had much
to say about the ingredients of this normative ideal, which may be somewhat
disappointing, though, as I indicated earlier, a promising account might be
found in Railton’s (2019) discussion of the ideal of the Rule of Law.
Cataloging the ideal as precisely as we can seems to me to be a project for
moral psychologists, or psychologists of legal moralism.91
Nevertheless, we have, I think, successfully motivated certain constraints
on this ideal. It captures only some of the reasons that bear on action. We can
call them “moral” reasons solely to emphasize that the reasons are genuine,
deliberatively relevant, and objectively worth attending to. But that doesn’t
mean that the law’s constitutive “goodness” entails all-things-considered
moral obligations to follow the law. Recall that we want to avoid the problems
for traditional non-positivism posed by immoral laws as well as mundane
and morally neutral laws that are legally obligatory but not morally so (see
Section 3.2). Nevertheless, the normative characterization of law by legal
actors tracks an objective normative property, sensitivity to which may be
connected to living in and striving to protect a cooperative legal order or civil
society.
Given general principles governing artifactual kinds, the existence and
persistence of law – that is, a legal order – is grounded, partly, in the social
acceptance of rules with certain formal characteristics (roughly those described
by HLA Hart), and, partly, in the minimal conformity of the system to the
normative ideal whose realization is law’s constitutive function. When a legal
system realizes to some extent the relevant ideal, the fact that it does is an
essentially normative fact. And so, a normative fact, concerning how good
a legal system is, in some selective and underspeciﬁed sense, partly grounds
its being a legal system.
Furthermore, we employ the concept of law to refer not just to systems of
rules but to speciﬁc rules of law within legal systems. The concepts associated
with other normative or value-driven artifacts function similarly. And when the
legal concept is used in this way, the criteria of application exhibit dual charac-
ter structure and aggregative multi-dimensionality: in determining whether

91
However, we shouldn’t expect a non-normative speciﬁcation of the ideal to fully capture its
normativity. When a legal system realizes the ideal, the fact that it does is an essentially
normative fact. Admittedly, I’m relying here on my own meta-normative commitments –
speciﬁcally, skepticism about reductive accounts of normativity. On the relevance of meta-
normative theory generally, see Section 4.

a rule falls under the concept, users of legal language rely on both social criteria,
such as the rule’s similarity to one derivable from a socially embraced rule of
recognition, as well as normative criteria, such as the rule’s contribution to law’s
normative aspirations. Both properties count in favor of the rule’s legality, but
the contribution each property makes (and what, in aggregate, counts as legal
sufficiency) is indeterminate. Conceptual competence follows from an under-
standing of easy and prototypical cases of law, where the social and normative
properties of rules more or less point in the same direction. Hard cases involving
divergence inspire understandable disagreement, even understandable errors
within a community based on the assumption that the concept of law affords
greater precision. Finally, the general concept of law lends itself to further
specification, with system-specific concepts of AMERICAN LAW or ROMAN LAW,
defined in terms of more fine-grained social and normative criteria of applica-
tion. Moral properties of rules may have greater legal significance in some such
jurisdictions on conceptual grounds alone, and not because a fundamental law
within the system, such as a legal rule of recognition, confers the status of
legality on moral principles.
The resulting view amounts to a moderate strain of legal non-positivism, one
that locates law within a broader conceptual framework involving artifactual,
functional, and goodness-fixing kinds. Its core commitments have been motiv-
ated based on clearly defined desiderata and general features of the broader
explanatory scheme on which it relies. The theory explains why law is suscep-
tible to kind-relative evaluation and why certain characteristics of law are
widely recognized as law’s constitutive virtues, without departing from general
theories of functional and goodness-fixing kinds. It explains, with considerable
neutrality on questions of legal substance and without undermotivated lack of
charity towards legal actors, the contested classification of moral principles as
a form of a priori law, juridical reliance on moral principles in adjudication, and
persistent theoretical disagreement about the grounds of law. The explanation
leverages general truths about our conceptual practices involving artifacts with
normative functions. The overall view has these virtues without insisting on
a counterintuitive correspondence between legal and moral facts, or on a robust
obligation to follow the law wherever there is law, or on law’s moral defects
being essentially legal defects. I don’t mean to suggest that that the view I’ve
sketched has no theoretical costs in comparison to, say, Hartian positivism. In
fact, I’ll address shortly what seems to me to be the most salient cost (shared
with other forms of non-positivism): namely, that the account makes liberal use
of normative concepts as well as an ontology of normative properties and facts.
Additionally, the account is clearly more baroque than Hart’s view, but a view
that is complex in principled ways doesn’t have to be “frilly.” That is, it needn’t

take on undermotivated commitments that make legal non-positivism a more

difﬁcult position to defend than it needs to be. This should advance the theory’s
prospects of wider acceptance.

4 Outstanding Questions
We have considered objections to speciﬁc versions of non-positivism as they
have come up. But questions remain that arise regardless of the form a non-
positivist view takes, including the relatively moderate position I outlined at the
end of the previous section. In what follows, I offer a brief discussion of two
important challenges confronting the non-positivist research program. The
discussion is brief because addressing these challenges comprehensively
would take us too far aﬁeld and the present goal is limited to identifying lines
of further inquiry.

4.1 Meta-normative Anxieties

The overall case for non-positivism has the structure of an inference to the best
explanation. We identified some facts about laws and legal systems that would be
hard to explain if positivism were true. And so, we explored non-positivist theories
that promise to explain everything that positivists can explain and more. But
introducing new theoretical machinery can be costly insofar as it generates new
explanatory burdens. The case for non-positivism only succeeds if the explanatory
gains over positivism aren’t outweighed by the costs. And one salient cost, or at
least an aspect of the non-positivist paradigm that makes some theorists nervous, is
its unqualified embrace of a vocabulary and ontology of the good and the right.
Here’s one way of fleshing out the concern. Legal non-positivists maintain
that the existence of a legal system depends on a system of rules being, as
a matter of fact, good in some moral or robustly normative sense. That makes
the existence of a legal system seem to depend on uncertain matters, for one
might have doubts about whether anything could be good “as a matter fact.”
There is certainly no consensus among philosophers about what our normative
thought and talk commits us to, and whether our commitments – including
assumptions about the factuality of moral discourse – are ultimately justified
(see, e.g., van Roojen 2023). By contrast, the existence of legal systems doesn’t
seem all that uncertain or controversial, which seems like a problem for non-
positivists. And there may be other ways in which meta-normative uncertainty
puts pressure on the view.92

92
Consider persistent disagreements about the content of the good and the right. Maybe such
disagreements undercut the plausibility of the claim (endorsed by positivists and non-positivists

I suspect such concerns to be the main source of resistance to non-positivism,

despite positivism’s explanatory gaps. If that’s right, then reinvigorating the
non-positivist research program crucially depends on explaining why we get to
be relaxed about our meta-normative commitments. Unfortunately, reasons of
space prevent me from doing justice to this important issue, which also happens
to be underdiscussed in the broader literature. Nevertheless, we should be able
to articulate in broad strokes the case for evaluating non-positivism independ-
ently of our meta-normative anxieties. For the view is compatible with any
viable position one might hold in meta-normative theory, at least in principle.
To begin with, although it might seem like non-positivists must assume the
existence of objective normative facts, this turns out not to be true. The crucial
point of non-positivism is that our legal categories take some broadly objectivist
assumptions about morality and normativity for granted – that is, in classifying
social orders as law, we take for granted that the relevant orders in fact exhibit
certain normative features, like reasonableness or authority. Non-positivists
endorse this claim because we think it best explains legal reasoning and
practice. But the normative assumptions essentially involved in legal classifica-
tion could very well turn out to be false and for reasons entirely unrelated to law
(more below) without undercutting the truth of non-positivism.93 And so, non-
positivism should be evaluated based exclusively on whether it offers the best
explanation of legal reasoning and practice. It shouldn’t be saddled with
a further theoretical obligation to “vindicate” objectivist ethics.
To ground the point by way of example, suppose a meta-normative “error
theory” turns out to be true (see, e.g., Mackie 1977). The error theorist thinks
that there are strictly speaking no facts of goodness or rightness, whether
concerning law or anything else. Our normative judgments attribute properties
to acts, situations, and states of affairs that they in fact lack. If both a meta-
normative error theory and non-positivism turn out to be true, it would entail
that some of the assumptions we make when we describe specific rules (or
bodies of rules) as law are mistaken – specifically, the assumptions concerning
law’s goodness. Non-positivism would thus turn out to be a qualified error
theory about law. But this wouldn’t entail anything so absurd as the nonexist-
ence of rules and social orders that we have in mind and intend to refer to using
our legal expressions. For even defective concepts can serve our communicative
ends of referring de re to, or focusing conversational attention on, genuine

alike) that some normative assumptions about law – its reasonableness or authority, say – are
widely shared among ofﬁcials involved in the production and sustaining of legal orders.
93
Indeed, some versions of non-positivism, such as the dual character theory, seem to me to be
agnostic on whether laws in fact exhibit the moral properties our concepts ascribe to them.

things in the world that our concepts misdescribe.94 Legal non-positivism is

thus compatible with a meta-normative error theory, although I’m not sure
I know anyone who explicitly endorses this position.
That said, given that defenders of non-positivism usually embrace more
optimistic meta-normative commitments (see, e.g., Finnis 2011; Dworkin
2011: pp. 23–94; Greenberg 2008), it would be good to say something in
defense of the view in its standard packaging. And the main point to note in
this regard is that there is a plausible research program in contemporary
metaethics that’s committed to showing not just that the error theory is false
but that a commitment to normative facts and, more generally, to the objectivity
of moral reasoning does not involve taking on any dubious metaphysical
commitments. For instance, metaethical “quasi-realists” maintain that moral
judgments have a practical function of expressing the speaker’s practical
attitudes – for instance, their support for or aversion to specific actions, rules,
or states of affairs – but that this attitude-expressive function is perfectly
compatible with the existence of moral facts, the objectivity of moral reasoning,
and a naturalistic worldview (see, e.g., Blackburn 1984, Gibbard 2003).95
I cannot elaborate on the justifications for quasi-realism here. The point I’m
making is just that if such relaxed forms of moral (“quasi-”)realism can be
absorbed “off the shelf” by non-positivism, then non-positivists don’t necessar-
ily incur any unique costs in terms of their metaphysical commitments as
compared to positivists.
Finally, even if it turns out that the best version of legal non-positivism
requires embracing a more controversial version of moral realism commit-
ted, say, to a “non-natural” realm of irreducibly moral facts and properties
(see, e.g., Enoch 2011), that wouldn’t, on its own, count in favor of positiv-
ism. I don’t deny that in this scenario, non-positivists would bear a unique
justificatory burden, since whether there are any such facts and properties is
entirely nonobvious. My point is just that insofar as the viability of robust
moral realism is philosophically contested, the truth or falsity of the
view will invariably be a point of contestation within the philosophy of
law as well.

94
For a general discussion of why an error theory about a domain of discourse needn’t undercut the
usefulness or practical point of the discourse, see Burgess (1998).
95
Traditionally, quasi-realists like Blackburn and Gibbard have endeavored to vindicate objectivist
claims in metaethics based on minimalist accounts of the concept of truth and related idioms of
objectivity. See discussion in Salinger (2023). For an alternative approach to the objectivity of
our moral commitments that is, in principle, compatible with quasi-realism, see Atiq (2021:
pp. 14052–14056). For an application of expressivist accounts of normative judgment (but not
quasi-realism) to legal theory, see Toh (2011).

4.2 The Stakes

Let’s assume that a relaxed moral realism can be made to work and turn to
a different challenge that’s best evaluated at the end of our discussion. Even if
some form of non-positivism turns out to be true, we haven’t yet ruled out the
possibility that it would be a better world, as in morally or practically better, if
we reoriented our social practices around a category that fits the basic elements
of a positivist characterization, call it “lawP.”96 As I noted at the outset, I won’t
be making a practical case for non-positivism, and so the question of whether
non-positivist assumptions and practices lead to better outcomes (for, say,
litigants and other legal subjects) remains unanswered. Yet the practical ques-
tion is a natural one to raise having examined the nature of our existing
practices. Once we’ve understood a salient and consequential aspect of our
social world, it’s sensible to ask how and whether it can be improved. Indeed,
our work has clarified what it would take to successfully reorient our thinking
and behavior around lawsP and legalP systems, and what we would be giving up.
LegalP practice would reflect very different assumptions about moral principles
(whether and when it’s appropriate for judges to rely on them), the rule of law
(i.e., the criteria for distinctly legal evaluation), theoretical disagreements (their
very possibility), and the history of legal systems (whether and to what extent
past legal systems are continuous with our current practices). Any serious
reformist would have to face up to the question of whether it’s even possible
to extricate the non-positivist assumptions that regulate legal reasoning and
behavior.
But even if it turns out that there are good and actionable reasons to revise our
practices, our efforts would not have been for naught. For quite apart from
needing a philosophy of law to help us understand the world as we find it, there
is an intellectual payoff that transcends our legal categories. Law turns out to be
embedded in a broader conceptual scheme that is worth understanding in its
own right, and that is, in turn, better understood when its interaction with law is
clarified. To illustrate, the moderate strain of non-positivism I’ve defended is
very much motivated based on a precise understanding of artifactual, func-
tional, and goodness-fixing kinds, not to mention the language we use to
conceptualize and refer to such kinds. It should be no surprise, then, that the
value of the philosophical enterprise tends to be most apparent to those
immersed in it and may elude those who haven’t followed the argument. It
takes systematic reflection to appreciate that our reasoning about laws and legal

96
In Section 1.3, I identiﬁed several authors who make a practical case for positivism. On
“reformist” projects generally and the possibility of “conceptual ethics,” see McPherson and
Plunkett (2024).

systems is richly complex, and that through the study of law in full generality,
we come to have a better grasp on the nature of value-driven artifacts, functions,
group agency, morality, kind-relative evaluation, and interpretation. What
would thus be effective as a critique of our descriptive (rather than practical)
methodology is a demonstration that despite our efforts to be systemic, we
ended up overlooking general features of laws and legal systems that invite
explanation. And the right response to such a critique would be an even more
systematic philosophy of law.

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of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781009288293
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of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781009288293
Acknowledgments
I am grateful to audiences at Columbia University, Cambridge University,
Oxford University, Yale University, and the Philadelphia Normative
Philosophy Conference for their questions and comments on presentations
based on the second and third sections. I received especially helpful feedback
from Rachel Schutz, Bill Watson, Andrei Marmor, Crescente Molina, Amin
Afrouzi, Matthew Kramer, David Enoch, Xi Zhang, Samantha Godwin, Shelly
Kagan, Brian Leiter, Angelo Ryu, and two anonymous reviewers. The editors of
the Cambridge Elements Series in the Philosophy of Law – Kenneth Ehrenberg,
George Pavlakos, and Gerald Postema – are owed a special thanks for their
invitation to contribute to the series. This volume has helped me synthesize my
work in legal philosophy over the last ﬁve years. The views I defend in
Sections 2.4 and 3.3 build on observations in Atiq (2019, 2020a), Section 2.1
offers an abridged version of the argument in Atiq (2023), and Section 2.5
summarizes and further develops an argument in Atiq (forthcoming).

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of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781009288293
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of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781009288293
Philosophy of Law

Series Editors
George Pavlakos
University of Glasgow
George Pavlakos is Professor of Law and Philosophy at the School of Law, University of
Glasgow. He has held visiting posts at the universities of Kiel and Luzern, the European
University Institute, the UCLA Law School, the Cornell Law School and the Beihang Law
School in Beijing. He is the author of Our Knowledge of the Law (2007) and more recently has
co-edited Agency, Negligence and Responsibility (2021) and Reasons and Intentions in Law
and Practical Agency (2015).

Gerald J. Postema
University of North Carolina at Chapel Hill
Gerald J. Postema is Professor Emeritus of Philosophy at the University of North Carolina at
Chapel Hill. Among his publications count Utility, Publicity, and Law: Bentham’s Moral and
Legal Philosophy (2019); On the Law of Nature, Reason, and the Common Law: Selected
Jurisprudential Writings of Sir Matthew Hale (2017); Legal Philosophy in the Twentieth
Century: The Common Law World (2011), Bentham and the Common Law Tradition, 2nd
edition (2019).

Kenneth M. Ehrenberg
University of Surrey
Kenneth M. Ehrenberg is Professor of Jurisprudence and Philosophy at the University of
Surrey School of Law and Co-Director of the Surrey Centre for Law and Philosophy. He is the
author of The Functions of Law (2016) and numerous articles on the nature of law,
jurisprudential methodology, the relation of law to morality, practical authority, and the
epistemology of evidence law.

Associate Editor
Sally Zhu
University of Sheﬃeld
Sally Zhu is a Lecturer in Property Law at University of Sheﬃeld. Her research is on property
and private law aspects of platform and digital economies.

About the Series

This series provides an accessible overview of the philosophy of law, drawing on its
varied intellectual traditions in order to showcase the interdisciplinary dimensions
of jurisprudential enquiry, review the state of the art in the ﬁeld, and suggest
fresh research agendas for the future. Focussing on issues rather than traditions
or authors, each contribution seeks to deepen our understanding of the
foundations of the law, ultimately with a view to oﬀering practical insights
into some of the major challenges of our age.

Elements in the Series

Revisiting the Rule of Law
Kristen Rundle
The Place of Coercion in Law
Triantafyllos Gkouvas
The Diﬀerentiation and Autonomy of Law
Emilios Christodoulidis
The Moral Prerequisites of the Criminal Law: Legal Moralism and the Problem
of Mala Prohibita
Ambrose Y. K. Lee and Alexander F. Sarch
Legal Personhood
Visa A. J. Kurki
The Philosophy of Legal Proof
Lewis Ross
Content-Independence in Law: Possibility and Potential
Julie Dickson
The Normativity of Law
Michael Giudice
Legal Rights and Moral Rights
Matthew H. Kramer
Dignity and Rights
Ariel Zylberman
Subsidiarity
Andreas Follesdal
Contemporary Non-Positivism
Emad H. Atiq

A full series listing is available at: www.cambridge.org/EPHL

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About the Series Series Editors

Cover image: Jane Couroussopoulos,

Cambridge University Press is part of Cambridge University Press & Assessment,

Elements in Philosophy of Law

Keywords: legal rules, moral principles, concepts of law, goodness-ﬁxing

1 Introduction: Subject Matter and Methodology 1

2 The Argument Against Positivism 10

3 How to Be a Legal Non-Positivist 35

1 Introduction: Subject Matter and Methodology

1.1 Analytic Jurisprudence and Conceptual Analysis

reﬂections about an objective aspect of the world – that is, if it is cognitively

1.2 The Metaphysical Turn in Contemporary Jurisprudence

system – or what legal philosophers sometimes call “the criteria of legal

1.3 Conceptual Engineering and Practical Philosophy

conception of law seems to me to be a hard question for moral philosophy and

2 The Argument Against Positivism

2.1 Moral Principles in Legal History

explanation, here, is the tendency to see the morality or rationality of a principle

a response to some uniquely modern way of thinking about and categorizing

2.2 Moral Principles in Adjudication

some legal system cannot be established based on a priori reﬂection on the

don’t ﬁt the observed behavioral facts perfectly and involve contestable

2.3 Persistent Theoretical Disagreement

If we pay attention to the pragmatics of judicial speech, we see that judges do

Unfortunately, positivists rarely offer much evidence in favor of this interpret-

explains away inconsistent observations as experimental error. The inconsistencies

2.4 Variations on the Gunman Situation (or the Problem

exercising its coercive powers is simply a claim to legitimate authority or,

2.5 Law as an Artifactual, Functional, and Goodness-Fixing Kind

forthcoming: pp. 1–2). The relevant good-making features include clarity

of functions have historically been attributed to law, such as coordination between

to the classic Rule-of-Law virtues. A familiar source of essential functions for

There is an intrinsic improbability about any theory that attempts to write

possible scenarios involving law, including, say, a dystopian scenario where

extensional implications. What we’ve presently discovered is that the commit-

(1) The fact that law is susceptible to kind-relative evaluation in terms

As I’ve already acknowledged, several premises rely on assumptions about

3 How to Be a Legal Non-Positivist

the insights captured by different versions of non-positivism, while avoiding

3.1 Natural Law Theories, Strong and Weak

agents decisive reasons for compliance. This view is vulnerable to several

obvious constitutive legal virtues such as justice or reasonableness, will seem

3.2 Dworkinian Interpretivism and the One-system View

torture and genocide (because no institutional practice that included such

choices of people around us, seems knowable or understandable through

The kinds of moral considerations Greenberg and others invoke to explain

philosophers of law need to take the assumptions internal to legal practice

3.3 Dual-Character and Aggregative-Cluster Concepts of Law

intriguingly consistent results across a range of legal cultures (Hannikainen et al.

3.4 Non-positivism without the Frills

3.4.1 Law as a Normative Artifact

3.4.2 From Normative Artifacts to Dual Character Concepts

Fortunately, an account of the “criteria of legality” can be developed in several

historical record of the application of art-concepts exclusively in terms of normative

3.4.3 On Concept[s] of Law: The Clustering and Fine-graining

laws, whose legality is a function of social conditions alone.83 Put differently,

on convergent behavior within our linguistic community – enable the present

Law, construed as a system of rules, is, fundamentally, a kind of abstract

take on undermotivated commitments that make legal non-positivism a more

4.1 Meta-normative Anxieties

I suspect such concerns to be the main source of resistance to non-positivism,

things in the world that our concepts misdescribe.94 Legal non-positivism is

4.2 The Stakes

Berman, M. N. (2022). Dworkin versus hart revisited: The challenge of

Dworkin, R. (1986a). A matter of principle. Cambridge: Harvard University

Jiménez, F. (2023). Legal positivism for legal ofﬁcials. Canadian Journal of

Lewis, D. (1975). Languages and language. In K. Gunderson (ed.), Language,

Murphy, L. (2001). The political question of the concept of law. In J. Coleman

Priel, D. (2020). Analytic jurisprudence in time. In T. Bustamante, & T. Decat

Simmonds, N. (2008). Law as a moral idea. Oxford: Oxford University Press.

Waldron, J. (2001). Normative (or ethical) positivism. In J. L. Coleman (ed.),

About the Series

Elements in the Series

A full series listing is available at: www.cambridge.org/EPHL

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