Legal Theory

http://journals.cambridge.org/LEG

Additional services for Legal Theory:

Email alerts: Click here

Subscriptions: Click here
Commercial reprints: Click here
Terms of use : Click here

INCORPORATIONISM AND THE OBJECTIVITY OF MORAL NORMS

Kenneth Einar Himma

Legal Theory / Volume 5 / Issue 04 / December 1999, pp 415 - 434

DOI: 10.1017/S1352325299054038, Published online: 08 September 2000

Link to this article: http://journals.cambridge.org/abstract_S1352325299054038

How to cite this article:

Kenneth Einar Himma (1999). INCORPORATIONISM AND THE OBJECTIVITY OF MORAL NORMS . Legal Theory, 5, pp
415-434 doi:10.1017/S1352325299054038

Request Permissions : Click here

Downloaded from http://journals.cambridge.org/LEG, IP address: 140.254.87.149 on 19 Dec 2014

 Legal Theory, 5 (1999), 415434. Printed in the United States of America
Copyright Cambridge University Press 13523252/99 $9.50
KENNETH EINAR HIMMA Incorporationism and the Objectivity of Moral Norms

INCORPORATIONISM AND THE

OBJECTIVITY OF MORAL NORMS
Kenneth Einar Himma
University of Washington

Positivisms Separability Thesis denies that the legality of a norm necessarily

depends on its substantive moral merits; as H.L.A. Hart puts it, [I]t is in no
sense a necessary truth that laws reproduce or satisfy certain demands of
morality, though in fact they have often done so.1 Accordingly, the
Separability Thesis implies it is logically possible for something that consti-
tutes a legal system to exclude moral norms from the criteria that determine
whether a standard is legally valid. In such a legal system, it is neither a
necessary nor a sufficient condition for a norm N to be legally valid that N
be consistent with a set of moral norms.
Knowing that there can be legal systems without moral criteria of validity,
however, does not tell us anything about whether there can be legal systems
with moral criteria of validity. Two schools have emerged on this controver-
sial issue. Inclusive positivists (also known as incorporationists and soft
positivists) subscribe to the Incorporation Thesis, according to which there
are possible legal systems in which the criteria of validity include substantive
moral norms. In such legal systems, whether a norm is legally valid depends,
at least in part, on the logical relation of its content to the content of the
relevant moral norm (or norms).2 According to the Incorporation Thesis,
then, a rule of recognition can (but need not) incorporate the content of
substantive moral norms. Exclusive positivists (also called hard positivists)
deny the Incorporation Thesis and subscribe instead to the Source Thesis,
according to which the existence and content of law can always be deter-
mined by reference to its sources without recourse to moral argument.

Thanks to David A. Shapiro for helping me to get clear on the metaethical notions. Special
thanks to Jules Coleman for his comments on an earlier version of this article and for his
kindness and encouragement. I am learning much from him not only about philosophy, but
also about what it means to be a teacher.
1. H.L.A. Hart, THE CONCEPT OF LAW 18586 (2d ed. 1994) [hereinafter CL].
2. As Brian Bix points out, there are two ways in which moral norms might figure into
a legal systems criteria of validity: (1) A rule or standard that would otherwise be part of
the legal system would be excluded should it be inconsistent with a moral rule or stand-
ardi.e., consistency with morality is necessary but not sufficient, for membership in the
legal system. . . . (2) A rule or standard could be law simply because it was part of (either
critical or conventional) moralityi.e., the moral content of the rule or standard is sufficient
to make it a member of the legal system. Brian Bix, Patrolling the Boundaries: Inclusive Legal
Positivism and the Nature of Jurisprudential Debate, 12 CAN. J.L. & JURIS. 17, 21 (1999).

415

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 416 KENNETH EINAR HIMMA

In allowing that morality can figure into legal validity, inclusive positivists
attempt to carve out logical space between Ronald Dworkins view that a
norm can be valid in virtue of its content and Joseph Razs view that a norm
can be valid only in virtue of having an authoritative source. Resistance to
this project has been widespread, as critics from all quarters deny the
availability of space between the two views. As a result, inclusive positivists
find themselves caught in the middle of a philosophical cross fire.
On one side, positivist critics like Joseph Raz and Scott Shapiro claim the
Incorporation Thesis is incompatible with other conceptual commitments
of positivism. Raz argues that the Incorporation Thesis is inconsistent with
laws claim to legitimate authority.3 On Razs view, an authoritative directive
cannot be legitimate unless its content can be identified without recourse
to the dependent reasons that justify that directive. Since, on his view, the
content of a moral norm cannot be identified without recourse to the
reasons justifying that norm, moral criteria of validity are incapable of
legitimate authority. Further, Shapiro argues that the Incorporation Thesis
is inconsistent with the view that law must be capable of making a practical
difference in an agents deliberations.4 According to Shapiro, an agent
cannot be guided both by an inclusive rule of recognition and the rules
validated by its moral criteria.
On the other side, Dworkin argues that the Incorporation Thesis presup-
poses a problematic commitment to the objectivity of moral norms. Legal
norms figure into adjudication by constraining judicial decision making in
circumstances to which they apply.5 But a norm can serve this function only
insofar as it has objective content; a nonobjective norm cannot constrain
judicial behavior because what that norm means is purely a matter of what
the judge believes it means. For this reason, a rule of recognition can
incorporate moral norms only to the extent that they have objective con-
tent. Thus, the argument concludes, the Incorporation Thesis presupposes
the truth of moral objectivisma commitment that Dworkin believes is
problematic for inclusive positivism.
In this essay, I consider the relationship between moral objectivism and
the Incorporation Thesis, taking as my point of departure Matthew Kra-
mers recent essay Coming to Grips with the Law.6 Kramer attempts to
show in this interesting article that the Incorporation Thesis does not imply
moral objectivism. I argue that Kramers analysis is unsuccessful, but also
show how it can easily be modified to establish that, on at least one under-
standing of moral objectivism, the Incorporation Thesis is logically inde-

3. Joseph Raz, Authority, Law, and Morality, 68 MONIST 295 (1985).

4. Scott Shapiro, The Difference that Rules Make, in ANALYZING LAW: NEW ESSAYS IN LEGAL
THEORY 33 (Brian Bix ed., 1998).
5. Critical legal theorists, however, dispute this claim. See, e.g., Guyora Binder, Critical Legal
Studies, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 280 (Dennis Patterson ed.,
1996).
6. Matthew H. Kramer, Coming to Grips with the Law: In Defense of Positive Legal Positivism, 5
LEGAL THEORY 171 (1999) [hereinafter CGL].

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 Incorporationism and the Objectivity of Moral Norms 417

pendent of moral objectivism. More importantly, I show that a commitment

to moral objectivism poses no significant problem for inclusive positivism.

I.

The Incorporation Thesis can be understood as a response to Dworkins

analysis of Riggs v. Palmer.7 In Riggs, the court considered the question of
whether a murderer should be allowed to take under his victims will. At the
time the case was decided, neither the statutes nor the case law governing
wills expressly prohibited such takings. Despite this, the court declined to
award the defendant his gift under the will on the ground that doing so
would be inconsistent with the principle that no person should profit from
her own wrong (the Riggs principle). Since the judges would rightfully
have been criticized for failure to consider this principle, it follows, accord-
ing to Dworkin, that the Riggs principle is legally valid.8
But Dworkin argues this creates a problem for positivism inasmuch as the
validity of the Riggs principle cannot derive from pedigree- or source-based
criteria: [E]ven though principles draw support from the official acts of
legal institutions, they do not have a simple or direct enough connection
with these acts to frame that connection in terms of criteria specified by
some ultimate master rule of recognition (TRS, 41). Unlike legal rules,
legal principles lack a canonical form and hence cannot be explained in
terms of an authoritative source. What explains the validity of the Riggs
principle, on Dworkins view, is not its pedigree or source, but rather its
content: The principle that no person should profit from her own wrong is
legally valid, in part, because it is a requirement of fairness. Thus, on
Dworkins view, the existence of legal principles like the Riggs principle is
inconsistent with Harts exclusively source-based account of validity.
As Jules Coleman points out, there are a number of moves available to
Hart in response.9 He could deny the Riggs principle is legally valid10, or he
could claim its validity is a function of pedigree rather than of content.
Instead, Hart denies he is committed to claiming that the criteria of validity
must be source-based criteria of pedigree. In a now-famous passage of the

7. Ronald Dworkin, TAKING RIGHTS SERIOUSLY (1977) [hereinafter TRS].

8. I use the term validity to describe the legal status of such principles even though
Dworkin believes that only all-or-nothing rules can be legally valid (TRS, 41). Nothing of
importance turns on this usage.
9. Jules L. Coleman, Incorporationism, Conventionality, and the Practical Difference Thesis, 4
LEGAL THEORY 381 (1998).
10. Here it is important to note that, as Raz points out, there can be standards that are
binding on judges but not legally valid. For example, sometimes judges are bound to apply the
laws of other nations in deciding disputes; such laws are binding on judges, though not legally
valid. Accordingly, there are two possibilities under this heading: (1) principles are binding but
not legally valid; or (2) principles are neither binding nor valid. In the second case, it is left
entirely to the judges discretion whether to apply any given moral principle.

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 418 KENNETH EINAR HIMMA

Postscript to The Concept of Law, Hart rejects the Source Thesis in favor of
the Incorporation Thesis:

Dworkin in attributing to me a doctrine of plain-fact positivism has mistak-

enly treated my theory . . . as requiring . . . that the criteria of validity which
the rule provides should consist exclusively of the specific kind of plain fact
which he calls pedigree matters. . . . [This] ignores my explicit acknow-
ledgement that the rule of recognition may incorporate as criteria of legal
validity conformity with moral principles or substantive values. (CL, 250)

According to Hart, Dworkins claim that the criteria of validity must be

exclusively source-based misunderstands the notion of a rule of recogni-
tion: [T]here is nothing in my [theory that suggests that the] criteria
provided by the rule of recognition must be solely matters of pedigree; they
may instead be substantive constraints on the content of legislation such as
the Sixteenth or Nineteenth Amendments to the United States Constitu-
tion (CL, 250).
Nevertheless, as Kramer notes, Hart is not entirely comfortable with this
elegant response. A few pages later, Hart qualifies his endorsement of the
Incorporation Thesis: [I]f it is an open question whether moral principles
and values have objective standing, it must also be an open question
whether soft positivist provisions purporting to include conformity with
them among the tests for existing law can have that effect or instead, can
only constitute directions to courts to make law in accordance with morality
(CL, 254). For if moral norms and values lack objective standing, then the
only way, according to Hart, to give effect to a legally authoritative rule that
contains moral language is to treat it as directing the judge to exercise his
law-making discretion in accordance with his best understanding of moral-
ity (CL, 253). Since it is an open question whether moral objectivism is
true, it is an open question whether a rule of recognition can incorporate
moral constraints on valid law.
Kramer regards this seemingly modest qualification as a major theoretical
concession to critics of positivism,11 and argues that Hart can avoid it by
adopting some of Dworkins recent observations on moral objectivity. In
Objectivity and Truth: Youd Better Believe It,12 Dworkin distinguishes
two kinds of skepticism about morality. A claim expressing doubt about the
status of a moral judgment is internally skeptical if and only if the claim
presupposes the truth of some moral judgment. A claim expressing doubt
about the status of a moral judgment is externally skeptical if and only if the

11. For this reason, Kramer believes it is necessary to rectify an unduly sweeping concession
made by H.L.A. Hart . . . that unless a realm of metaphysically independent moral facts exists,
the incorporation of moral criteria into a Rule of Recognition will mean that any norms
validated by reference to those criteria are not preexisting laws (CGL, 19092, emphasis
added).
12. Ronald Dworkin, Objectivity and Truth: Youd Better Believe It, 25 PHIL. & PUB. AFF. 87
(1996).

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 Incorporationism and the Objectivity of Moral Norms 419

claim does not presuppose the truth of any moral judgment. On Dworkins
view, then, the claim that there is nothing inherently bad about sexual
contact is an internally skeptical claim about sexual morality insofar as the
claim rests on the moral judgment that suffering is the only thing that is
inherently bad. In contrast, the claim that there is no objective fact of the
matter about whether sexual contact is inherently bad is an externally
skeptical claim about sexual morality.
On Dworkins view, external skepticism, like internal skepticism, about
the status of moral claims must be understood as a moral position, and not
as a metaphysical one13: So for example, the [putatively external] thesis
that there is no right answer to the question whether abortion is wicked is
itself a substantive moral claim, which must be judged and evaluated in the
same way as any other substantive moral claim.14 But if assertions regarding
the objectivity of moral norms are moral claims, then, according to Kramer,
Hart can endorse the thesis that moral propositions are true without com-
mitting himself to the controversial doctrine of moral realism:

No longer can Dworkin consistently allege that the soft positivists are commit-
ted to a moral-realist doctrine simply by dint of their acknowledging the
preexistence of many legal norms that have been identified partly through
moral tests. Soft positivists need only accept that many moral propositions are
true; an acceptance of such a claim does not commit them to an ontologically
realist account of morality. Instead, they will be committed merely to the view
that moral argumentation on any particular issue . . . can in principle yield a
verdict that is superior to every other verdict on the issue in question. Such
a view is a moral thesis rather than a metaphysical tenet. (CGL, 19394)

Since the view that many moral propositions are true is a moral thesis,
Kramer concludes that [i]t does not burden the soft positivists with what
many of them would see as unwanted ontological lumber (CGL, 194).
Unfortunately, there are a couple of problems here. Dworkins analysis
cannot relieve inclusive positivism of the burden . . . [of] unwanted onto-
logical lumber unless this analysis is correct. And here it is worth noting
that Dworkins view is disputed not only by the external skeptics he chal-
lenges in his article, but also by metaethicists who believe there is a clean
logical divide between normative ethics and metaethics. For the view that
external skepticism is a morally normative position implies that metaethical
claims are sometimes reducible to substantive normative claims, and this is
inconsistent with the common view that metaethical claims are logically
independent of normative ethical claims. Thus, Kramers analysis merely
replaces Harts qualification to the Incorporation Thesis with another one
that is admittedly more narrow but equally controversial: Whether the

13. External propositions about morality are frequently claimed to rest on nonnormative
metaphysical claims about what kinds of properties exist in the universe.
14. Dworkin, supra note 12, at 89.

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 420 KENNETH EINAR HIMMA

Incorporation Thesis is tenable now depends on whether Dworkin is cor-

rect in thinking that moral objectivism is a moral thesis and not a metaphysi-
cal one. It is hard to see how this significantly improves Harts position.
More importantly, Kramers analysis misses the point of the Hartian
qualification to the Incorporation Thesisa confusion due, in part, to
Kramers failure to get clear on the relevant metaethical notions. Kramer
alternates throughout the article between two logically distinct descriptions
of what he takes to be Harts concession. In one place he describes Harts
worry as whether moral principles have objective standing (CGL, 192),
but in another describes it as whether the soft positivist is committed to a
moral-realist doctrine (CGL, 193). Compounding the confusion, Kramer
elsewhere describes the concern as whether soft positivism commits its
proponents to a moral-realist metaphysical vision of an objective realm of
moral facts (CGL, 191).
These two notions are far from being interchangeable. At the most
general level, moral realism purports to be a theory about what is real and
is hence an ontological doctrine. The realist asserts that the properties of
rightness and wrongness are, so to speak, part of the fabric of the world and
have an existence that does not depend on what human beings believe
about them.15 In contrast, moral objectivism purports to be a theory about
the truth conditions for moral judgments and is sometimes characterized
as an epistemological theory and sometimes as a logical or semantic theory.
Different forms of objectivism disagree on the particulars of the truth
conditions for moral judgments, but all agree that moral judgments are
bearers of truth-value and that the truth-value of such judgments does not
depend on what human beings believe about them.
Of course, one might reasonably expect some sort of relationship be-
tween an ontological doctrine about the reality of some property and a
doctrine about the truth conditions of propositions involving attributions
of that property. After all, the reality or nonreality of a particular property
would seem to have something to do with whether or not a proposition
attributing that property to some entity is true. Perhaps as a result of such
considerations, Michael Dummett characterizes realism in terms that make
reference to the objectivity of truth-values. According to Dummett, realism
is the belief that statements of the disputed class possess an objective
truth-value, independently of our means of knowing it: they are true or false
in virtue of a reality existing independently of us.16 On Dummetts formu-

15. Jules Coleman and Brian Leiter describe metaphysical realism as follows: Metaphysi-
cal realism is the view that what there isthe worldis independent of human minds in
two senses. First, the existence and character of the world is not simply the extension of
human mind. . . . Secondly, the existence and character of the world does not depend on
the evidentiary tools available to us for gaining access to it. Jules L. Coleman & Brian
Leiter, Determinacy, Objectivity, and Authority, in LAW AND INTERPRETATION 203 (Andrei Marmor
ed., 1995) [hereinafter DOA].
16. See Michael Dummett, TRUTH AND OTHER ENIGMAS 146 (1978).

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 Incorporationism and the Objectivity of Moral Norms 421

lation, moral objectivism and moral realism would be logically equivalent

notionsthough not identical in sense.
Dummetts characterization of realism, however, is widely disputed. Geof-
frey Sayre-McCord, for example, rejects the idea that realism is appropri-
ately characterized in terms making reference to the objectivity of
judgments. On Sayre-McCords view, moral realism involves two fundamen-
tal commitments: (1) Moral claims are either literally true or literally false,
and (2) some moral claims are literally true. Accordingly, Sayre-McCord
concludes that moral realism is defensible if, but only if, there is some
plausible account of the truth-conditions of moral claims that captures their
literal meaning and that makes sense of some of them being literally true.17
Sayre-McCord identifies three plausible accounts of the truth conditions for
moral statements:

Truth conditions are subjectivist (as I use the term) if they make essential
reference to an individual, intersubjectivist if they make essential reference
to the capacities, conventions, or practices of groups of people, and objec-
tivist if they need make no reference at all to people, their capacities,
practices, or their conventions. (MMR, 1415)18

Thus, Sayre-McCord views moral objectivism as one species of moral real-

ism, but not the only form; on Sayre-McCords view, moral subjectivism and
moral intersubjectivism are also forms of moral realism.
In contrast, C.E. Harris believes Sayre-McCord has the relationship be-
tween objectivism and realism backwardsthough the differences between
Harris and Sayre-McCord may seem more nominal than substantive.
Whereas Sayre-McCord believes moral objectivism is a subspecies of moral
realism, Harris believes that moral realism is a subspecies of moral objectiv-
ism.19 On Harriss view, moral objectivism is the view that moral judgments
are either objectively true or objectively false, but there are several ways in
which this might be so. What distinguishes moral realism from other forms
of moral objectivism, according to Harris, is that the moral realist believes
that moral truth is discovered, not invented. Thus, whereas Sayre-McCord
would view certain forms of moral conventionalism (being forms of moral

17. Geoffrey Sayre-McCord, The Many Moral Realisms, in ESSAYS ON MORAL REALISM 22 (Geof-
frey Sayre-McCord ed., 1988) [herein after MMR].
18. Coleman and Leiter would regard Sayre-McCords intersubjectivism as a form of what
they call minimal objectivity. Minimal objectivity is the view that what seems right to the
majority of the community determines what is right (DOA, 253). Sayre-McCord seems to have
the more plausible taxonomy here. Coleman and Leiter define objectivity in general as the view
that there are correct answers to pressing legal, political, and moral questions: answers whose
correctness is independent of peoples beliefs about them (DOA, 244). On this charac-
terization of objectivity, which seems to me correct, minimal objectivity is not a form of
objectivism at all because, by definition, the correct answer to a minimally objective question
does depend on what people believe about it.
19. C.E. Harris, Jr., APPLYING MORAL THEORIES (3d ed., 1997).

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 422 KENNETH EINAR HIMMA

intersubjectivism) as forms of moral realism, Harris views them as inconsis-

tent with each other.
Andrei Marmor shares Harriss view that conventionalism and realism are
inconsistent, but believes, contra Harris, that conventionalism is a form of
objectivism:20

One needs to observe that there is a wide range of discourses where we feel
pretty certain about truth (and knowledge), and equally certain that it would
not make much sense to be a realist about those realms. . . . For example, we
feel that there is certainly a truth of the matter about the rules of chess. . . .
In [this] and countless other examples, we safely use the notions of truth and
falsehood, despite the fact that it would make no sense to hold a realist
position about such discourses. The truths about the rules of chess are not
rendered so by an objective reality which is epistemically independent of
human creation and human knowledge.21

The idea here is that there are many contexts in which it makes sense to
think of statements as taking objective truth-values but not as describing a
reality that exists independent of human beliefs. Normative judgments
involving conventional standards are bearers of objective truth-value even
though those judgments do not describe a reality that is independent of
human beliefs. Accordingly, Marmor concludes that objectivism does not
imply realism.22
The point here is not to endorse a view about the proper characterization
of moral realism relative to moral objectivism. As these passages make clear,
there is considerable controversy about the logical relations between objec-
tivism and realism; sorting these relations out is a task best left to theorists
specializing in methaphysics or metaethics. Rather, the important point for
my purposes is that whatever the relationship between moral realism and
moral objectivism (or, for that matter, metaphysical realism and metaphysi-
cal objectivism) turns out to be, it is a mistake to treat the two, as Kramer
does, as interchangeable.
In consequence, Kramers analysis never really addresses Harts concern.
While Hart expresses the concern that soft positivism presupposes moral
objectivism (the objective standing of moral judgments), Kramer argues
that Dworkins views on moral objectivity show that the soft positivist is not
committed to a realist ontological hypothesis (CGL, 194). But this tells us
little about whether soft positivism presupposes the objectivity of moral
principles. At the very least, Kramer needs to untangle moral realism and
moral objectivism, and to explain why Harts expressed concern can be

20. Harris regards conventionalism as a form of subjectivism that is opposed to objectivism.

21. Andrei Marmor, An Essay on the Objectivity of Law, in ANALYZING LAW: NEW ESSAYS IN LEGAL
THEORY 11 (Brian Bix ed., 1998).
22. Coleman and Leiter side with Marmor on this issue. On their view, conventionalism is
a form of minimal objectivity that does not imply realism (DOA, 253).

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 Incorporationism and the Objectivity of Moral Norms 423

resolved merely by showing that soft positivism is independent of moral

realism.
More likely, what is needed to correct Harts concession is an argument
that the content of a moral principle can be incorporated into the law even
if moral objectivism is false. Despite the initial missteps, Kramer comes close
to attempting such an argument. He asks of moral questions with no single
objectively right answer, Is [the soft positivist] thus committed to the view
that, when legal norms are validated partly on the basis of the judges
answers to those difficult questions, the norms have had no legal status
prior to the validative decisions? In other words, must the soft positivist
accept that such norms cannot rightly be deemed preexistent laws that the
judges discover rather than introduce? (CGL, 196) A successful argument
that the answer to this question is no would provide a foundation for
arguing that the Incorporation Thesis does not imply moral objectivism.
For if it is true that the law can incorporate a moral norm even in the case
of a question for which there is no single answer that is objectively true, it
seems to follow that the law can incorporate moral norms regardless of
whether they are objectively true.
Kramers analysis here just misses delivering on its tantalizing promise.
Kramer argues that, in such cases, the moral beliefs of the legislators can be
incorporated into the law to fill the moral gap. He asks the reader to
suppose there is no single correct answer to the question Q of whether an
enactment E satisfies some moral requirement, and argues as follows:

Let us presume that American legislative and judicial officials are unanimous
or virtually unanimous in thinking that Q should be answered affirmatively
when posed in connection with E-enactments. Any maverick officials opting
to answer negatively will incur reprimands from their colleagues, who will
reverse the mavericks decisions and deem them to be plainly in error.
Legislative officials pass E-enactments with the expectation that Q will be
answered affirmatively in regard to those enactments; judicial officials are
aware of the expectations of the legislators, and they fully share the legisla-
tors view about the appropriate answer to Q. In these circumstances, the
understandings and expectations of the officials confer a context-specific
determinacy on Q as applied to E-enactments. (CGL, 197)

Accordingly, Kramer concludes that such remarks appropriately imply that

my scenario involving E-enactments has seized upon American officials
virtually unanimous beliefs as some of the truth conditions for propositions
about the E-enactments (CGL, 199).
Kramers analysis shows that the law can incorporate a legislators beliefs
about morality,23 but few theorists deny this. Indeed, as Kramer notes,

23. But some qualification is needed. Whether the law can incorporate the content of some
proposition P will depend on the extent to which the content of P is determinable. Suppose,
for example, lawmakers learned of the existence of a volume V that contained plausible,

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 424 KENNETH EINAR HIMMA

Dworkin himself concedes this move is open to the positivist: A positivist

may hold a theory of statutory interpretation such that, if a statute provides
that a contract is invalid when it is unconscionable, and the vast majority of
[officials think] that a particular sort of contract is unjust, then that sort of
contract is, as a matter of law, invalid (CGL, 197, quoting TRS, 348). That
Kramer believes Dworkins criticism can be met with a claim that Dworkin
concedes in the very essay where the criticism appears suggests Kramer has
misinterpreted Dworkins view.
Indeed, it is not difficult to see how Dworkin would respond. In the
sentence that immediately follows the one quoted by Kramer, Dworkin
argues that [a theory that incorporates beliefs about morality into the law]
makes beliefs about moral facts, not moral facts themselves, decisive for
propositions of law (TRS, 348). If Dworkin is correct, then Kramers view
that beliefs about morality can be incorporated into the law does nothing
to rectify Harts original modification to the soft-positivist thesis. Hart be-
lieves that if moral principles are not objectively true, then standards at-
tempting to incorporate moral requirements can only constitute directions
to courts to make law in accordance with morality (CL, 254). To this,
Kramer adds or an incorporation of the legislators beliefs with respect to
those moral requirements. The problem is that this addendum does not
show that the content of moral principles can be incorporated into the law
even if those principles are not objectively true.
There is, however, a fairly straightforward response that Kramer over-
looks, again, because he never develops the relevant metaethical notions: If
beliefs about moral principles can be incorporated into the law, it follows that
what Sayre-McCord calls moral intersubjectivism (ostensibly a non-objectivist,
realist view) is compatible with the Incorporation Thesis. According to
moral intersubjectivism, the truth conditions for moral judgments are char-
acterized by essential reference to the capacities, conventions, or practices
of groups of people (MMR, 15). If the reality of moral judgments is
constituted by the beliefs of some group of people, then Kramers analysis
shows that a rule of recognition can incorporate moral judgments if inter-

coherent answers to every legal issue that was likely to arise in the U.S., along with enough legal
theory to justify those answers. Suppose further that this volume was located on a planet well
beyond the reach of earth. If the purpose of law is to guide human behavior, as most positivists
believe, then there could not be a rule of recognition incorporating the contents of V because
there is no way for anyone to discover its contents. The effect of a rule of recognition that
requires people to act in accordance with the contents of V, if it also provided for a court system
that determines the contents of V, would be to require that people act in accordance with
judicial holdings about the contents of V. But such a rule of recognition would thus incorporate
judicial decisions about the contents of Vand not the contents of V themselves.
If this is correct, then a legislators beliefs about morality can be incorporated into the law
only to the extent that those beliefs can be determined without controversy. This would
suggest, for example, that a rule of recognition can incorporate George Washingtons beliefs
about morality to only a limited extent: If we cannot determine the content of those beliefs,
then they cannot be incorporated into the law. Determining the contents of a living legislators
beliefs, of course, poses no insurmountable problems: If the legislator is trustworthy, all one
has to do to determine the content of her beliefs about something is to ask her.

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 Incorporationism and the Objectivity of Moral Norms 425

subjectivism is true, because a rule of recognition can incorporate group

beliefs, and, ex hypothesi, group beliefs constitute moral standards. And it
is further worth noting here that, on such an account, moral facts are
reducible to empirical facts about what people in the group believe; thus,
this account does not presuppose the existence of any mysterious ontologi-
cal entities that cannot be accessed through empirical means.24
Of course, this kind of analysis presupposes the correctness of Sayre-
McCords account of the various distinctions between objectivism, intersub-
jectivism, and subjectivism. But, even if Sayre-McCords intersubjectivism is
really a form of moral objectivism, as Marmor believes,25 it is nevertheless
true that a commitment to moral objectivism, in and of itself, does not
entail any mysterious ontological commitments of the sort Kramer worries
about. For regardless of whether moral intersubjectivism turns out to be a
form of objectivism, moral facts are reducible to purely empirical facts
about what people in the relevant group believe. Thus, if Kramer is correct
in thinking that what motivates Harts qualification to the Incorporation
Thesis is a concern to avoid mysterious ontological commitments, that
concern can be assuaged without recourse to highly controversial metaethi-
cal theories like Dworkinsand without presupposing the truth of Sayre-
McCords taxonomy.

II.

While the argument in Section I shows that, at least on one characterization

of objectivism, the Incorporation Thesis does not imply moral objectivism,
the question arises why this was worth worrying about in the first place.
Kramer describes Harts concession as unwise and inadvisable but
never explains why an implicit commitment to moral objectivism would be
problematic for inclusive positivism. Though Kramer apparently regards
the problem as obvious, it is not immediately clear why an inclusive positivist
should be troubled by such a commitmentespecially given all the confu-
sion about what objectivism amounts to.
For his part, Dworkin believes that a conceptual commitment to moral
objectivism is inconsistent with what he takes to be two other core commit-
ments of positivism:

(D1) the claim that the truth conditions of propositions of law do not include
anything but historical conditions (TRS, 348)
(D2) positivisms commitment to mak[ing] the objective standing of proposi-
tions of law independent of any controversial moral theory either of meta-
ethics or of moral ontology (TRS, 349)

24. Since it is clear that moral objectivism does not imply the Incorporation Thesis, it follows
that the Incorporation Thesis is logically independent of moral objectivism.
25. Marmor refers to what Sayre-McCord calls intersubjectivism as a form of conventional-
ism. See Marmor, supra note 21, at 1011.

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 426 KENNETH EINAR HIMMA

Dworkin believes (D1) is entailed by the Social Fact Thesis and (D2) is
entailed by the Separability Thesis.
Both claims are problematic. (D1) begs the question against inclusive
positivists by equating positivism with the crudest form of exclusive positiv-
ism. As for (D2), Dworkin interprets the Separability Thesis as making a far
more sweeping claim than positivists typically do: Dworkin interprets the
Separability Thesis as promis[ing] an ontological separation of law from
morals (TRS, 34849). On this view of the Separability Thesis, there can be
no overlap between questions about the existence of any law-related stan-
dard or institution and questions about morality. Thus construed, there can
be no substantive moral constraints at either the macrolevel (i.e., on the
content of legal systems) or the microlevel (i.e., on the content of individual
laws). According to Dworkins interpretation, then, any intersection of legal
and moral validity at even the level of contingent description would violate
the Separability Thesis because questions about whether a standard is
legally valid are ontological questions about whether that standard, so to
speak, exists as a law.
This is much stronger than Harts version of the Separability Thesis.26 As
Hart expresses this thesis, [I]t is in no sense a necessary truth that laws
reproduce or satisfy certain demands of morality, though in fact they have
often done so (CL, 18586). Harts articulation of the Separability Thesis
is weaker than Dworkins version in two respects. First, Dworkin interprets
the Separability Thesis as requiring a separation of law and morality at both
the macro- and microlevel, whereas Harts version requires it at only the
microlevel. Second, Dworkin interprets the Separability Thesis as implying
there cannot be any moral constraints on legal validity, whereas Hart inter-
prets it as implying only that there need not be any moral constraints on legal
validity.
Harts formulation probably underestimates the reach of the Separability
Thesis. Since the existence of law presupposes the existence of a function-
ing legal system, the Separability Thesis seems to imply there are no moral
constraints in the existence conditions for legal systems.27 At the very most,
then, this means that the concept of law contains no reference to moral
considerations that constrain either the content of the law or the defining
features of a legal system. For this reason, the Separability Thesis implies
that, at the conceptual level, there are no moral principles contained in the
existence conditions for law or for legal systems.

26. See Jules L. Coleman, Negative and Positive Positivism, 11 J. LEGAL STUD. 139 (1982). For
an interesting, though sometimes problematic, discussion of the various ways in which the
Separability Thesis can be interpreted, see Klaus Fer, Farewell to Legal Positivism: The Separa-
tion Thesis Unravelling, in THE AUTONOMY OF LAW: ESSAYS ON LEGAL POSITIVISM 119 (Robert P.
George ed., 1996).
27. This is why Fullers principles of legality would be inconsistent with the Separability Thesis
if the internality of these principles could be explained only by their moral content, even though,
strictly speaking, the principles of legality are constraints on the existence of legal systems and
not constraints on the content of individual laws. See Lon L. Fuller, THE MORALITY OF LAW (1964).

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 Incorporationism and the Objectivity of Moral Norms 427

Most positivists follow Hart in claiming that the criteria for legal validity
must, as a conceptual matter, include rules for making, changing, and
adjudicating laws. But apart from that conceptual restriction, it is up to a
society to decide what standards will make up its criteria of validity. The
point of the Separability Thesis is to emphasize that there are no necessary
substantive moral constraints on what standards a society can include in its
criteria of validity. For this reason, the Separability Thesis implies there is a
possible legal system without moral standards in its criteria of validity, but
leaves open the possibility of a legal system with moral standards in its
criteria of validity. Thus, while Hart probably underestimates the scope of
the Separability Thesis, Dworkin overestimates it.
Consider, for example, a version of the Separability Thesis that pertains
to principles of etiquette (which I take to be nonmoral). It is, of course,
conceptually true that there are no necessary constraints on law based on
principles of etiquette; hence, it seems reasonable to conclude that the
concept of law (or of legal validity) is independent of the concept of
etiquette. But there is no reason to think that this version of the Separability
Thesis, in and of itself, implies there cannot be legal systems that incorpo-
rate etiquette-based constraints on legal validity. A rule of recognition
could, for example, confer legal validity on only those laws consistent with
contemporary principles of etiquette. Likewise, there is no reason to think
that the Separability Thesis, in and of itself, implies there cannot be legal
systems that incorporate moral constraints on the content of law.
Exclusive positivists, of course, deny this possibility, but for reasons that
have nothing to do with the two intuitions that motivate the Separability
Thesis: (1) the existence of a law is one thing, its merit another28 and (2)
the notions of law and morality are conceptually distinct.29 Raz subscribes
to the Source Thesis, according to which the existence and content of
every law is fully determined by social sources.30 Thus, on Razs view,
whether or not a proposition is legally valid necessarily depends on whether
it can be traced to a social source. Social sources include formal promulga-
tions, as well as interpretive materials such as judicial opinions. But insofar
as the validity of every proposition of law can be explained entirely in terms
of social sources, it follows that there can be no moral criteria of legal
validity. Thus, it is the Source Thesis, and not an idiosyncratic interpretation
of the Separability Thesis, that grounds Razs rejection of possible legal

28. Austin expresses this intuition as follows: Now, to say that human laws which conflict
with the Divine Law are not binding, that is to say, are not laws, is to talk sheer nonsense. The
most pernicious laws, and therefore those which are most opposed to the will of God, have
been and are continually enforced as laws by judicial tribunals. John Austin, THE PROVINCE OF
JURISPRUDENCE DETERMINED 158 (1995). The intuition here is that a system of rules can be a
legal system even if those rules do not comport with moral principles.
29. For an opposing view, see Jules L. Coleman, Second Thoughts and Other First Impressions, in
ANALYZING LAW: NEW ESSAYS IN LEGAL THEORY, supra note 21, at 26466.
30. Joseph Raz, THE AUTHORITY OF LAW 46 (1979). Hereinafter referred to as AL. Raz
believes the Source Thesis is implied by the view, which he takes to be conceptually true, that
law claims legitimate authority. See Raz, supra note 3.

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 428 KENNETH EINAR HIMMA

systems with moral constraints on the content of law.31 Dworkin and Raz
each reject soft positivism, but for very different reasons.32
Nevertheless, though Hart clearly rejects (D1) in the Postscript, he de-
clines to challenge (D2). Instead, he modifies the soft-positivist thesis to
avoid any commitment to a controversial moral theory:

[I]f the question of the objective standing of moral judgments is left open
by legal theory, as I claim it should be, then soft positivism cannot be simply
characterized as the theory that moral principles or values may be among
the criteria of legal validity, since if it is an open question whether moral
principles and values have objective standing, it must also be an open ques-
tion whether soft positivist provisions purporting to include conformity
with them among the tests for existing law can have that effect or instead,
can only constitute directions to courts to make law in accordance with
morality. (CL, 254)

Kramer is uneasy with this disjunctive reformulation of the inclusive-posi-

tivist thesis, but never explains why. And the only passage in which Hart
explicitly addresses the worry says little to suggest much in the way of
discomfort on his part: [S]ome theorists, notably Raz, hold that whatever
the status of moral judgments may be, whenever the law requires courts to
apply moral standards to determining the law it thereby grants the courts
discretion and directs them to use it according to their best moral judgment
in making what is a new law; it does not thereby convert morality into
pre-existing law (CL, 254).

31. It is worth noting here that the Source Thesis precludes only the existence of moral
constraints on legal validity and hence leaves open the possibility that the law can incorporate
moral principlesas long as those principles do not purport to function as criteria of validity.
As Scott Shapiro puts the point:
Opposed to inclusive positivism, exclusive positivism denies that moral rules can
become law just because judges feel bound to apply moral rules in cases that arise before
them. They take the conventionality of law to impose restrictions not only on the type
of rule that a rule of recognition may be, that is, it must be a social rule, but also on the
conditions of legal validity that are specified by such a rule. For the exclusive legal
positivist, the conventionality of law is compromised whenever the rule of recognition
conditions legal validity on the moral superiority or acceptability of a norm. The
promise-keeping rule, for example, may only become law when some authoritative body
duly enacts or practices it; if the promise-keeping rule lacks a direct social pedigree, it
may never count as a legal norm.
See Scott J. Shapiro, The Difference that Rules Make, in ANALYZING LAW: NEW ESSAYS IN LEGAL
THEORY, supra note 21, at 57. Accordingly, it is possible for the law to incorporate a moral
standardbut not as a criterion of legal validity; it is necessarily true that all constraints on
legal validity are related to considerations of pedigree. Thus, the law can incorporate a moral
standard relating to promise keeping, but only by formal promulgation that has the appropri-
ate social pedigree. See also Coleman, supra note 29, at 260: Razs positivism allows that moral
principles can be legally valid. Thus, his exclusive positivism has an incorporationist dimen-
sion.
32. Obviously, Dworkin would have to reject the Source Thesis because it implies the falsity
of Dworkins theory of adjudication.

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 Incorporationism and the Objectivity of Moral Norms 429

One might construe this passage as suggesting Hart believes the uncer-
tain tone of his soft positivism suffers in comparison to Razs exclusive
positivism. But it is unlikely that Hart was much worried about this element
of his view, if he was concerned at all. After all, Harts analysis of social
morality suggests he had serious doubts about moral objectivism. Indeed,
as Raz argues, Harts view that the existence of social obligations, including
legal obligations, can be explained only in terms of the internal point of
view was motivated in part by skepticism about moral objectivity:

Harts legal statements from an internal point of view . . . [indicate] how

things are under the law, while endorsing or expressing an endorsement of
the law at the same time. The problem Hart sought to solve in this way was
the problem of the relations between law and morality in the face of two
philosophical beliefs: first, his doubts about the objectivity of ethics and of all
evaluative judgments, and second, his belief in the objectivity of law.33

It is not at all surprising that Hart would waffle a bit about the Incorporation
Thesis given his abiding doubts about moral objectivism.
Beyond this trivial worry, however, Hart saw no reason for concernand
rightly so. There is nothing essential to Harts project that rests on the
objectivity of moral norms. As Harts own remarks suggest, he simply would
have abandoned inclusive positivism for exclusive positivism if moral objec-
tivism had been shown to be false.34 Harts sympathy for the Incorporation
Thesis was likely motivated by the observation that many legal systems
attempt to incorporate moral standards in the criteria of validity. Of course,
Harts doubts about moral objectivism entailed corresponding doubts that
moral standards could be incorporated in a rule of recognition. But there
is no reason to think that Hart had ruled out the possibility that moral
norms might be objective. And these lingering doubts that moral objectiv-
ism might be true were apparently enough to preclude his dismissing efforts
to incorporate moral content into the criteria of validity as conceptually
confused. But nothing of importance in Harts project turns on the objec-
tivity or nonobjectivity of moral norms.
Moreover, many legal theoriesincluding Dworkins and every other
form of natural law theorypresuppose a commitment to moral objectiv-
ism.35 Likewise, every normative theory of adjudication that recommends
judges consider moral principles in interpreting and creating law is incon-
sistent with moral subjectivism. In the absence of a persuasive argument for
thinking that the Separability Thesis is inconsistent with a commitment to

33. See Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, 4 LEGAL
THEORY 253 (1998).
34. This would explain why Hart devotes so little space to answering Razs powerful criti-
cisms of inclusive positivism.
35. I suspect that Dworkin and other natural law theorists would be inclined to reject
Sayre-McCords moral intersubjectivismregardless of whether it turns out to be a form of
moral objectivism.

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 430 KENNETH EINAR HIMMA

moral objectivism, there is no reason to think that a positivist is uniquely

precluded from endorsing such a view. If a commitment to moral objectiv-
ism is a problem for inclusive positivism, it is also a problem for most other
interesting theories of law and adjudication.

III.

Philip Soper shares Kramers discomfort with Harts qualification to the

Incorporation Thesis, but Sopers concern has more to do with political
morality than with metaphysics. To illustrate what he takes to be the prob-
lem, Soper distinguishes between formal and substantive incorporation. On
Sopers view, a moral standard is formally incorporated into the law if and
only if the standard requires a court to proceed differently in deciding a
case than it would if no such standard applied.36 A moral standard is
substantively incorporated into the law if and only if the content of the
standard constitutes binding law. According to Soper, the inclusive positivist
believes that moral standards can be both formally and substantively incor-
porated into the law,37 whereas the exclusive positivist believes that such
standards can be formally, but not substantively, incorporated into the law.
On Sopers view, what really matters about the distinction between formal
and substantive incorporation has to do with the distinction between judg-
ing and legislating:

All of the examples we have considered above (hard, soft, and weird positiv-
ism) assume that the line between judging and legislating is to be drawn on
the basis of some standard philosophical concept of objectivitysomething
that is actually out there to control the decision. According to this meta-
physical understanding of objectivity, a purely subjective standard would be
one in which the judges decision is right or wrong (legally) simply because
the judge thinks it should be the law: No possibility of mistake about the law
exists, though the decision may be criticized on extra-legal grounds. An
objective constraint, in contrast, introduces the possibility that the decision is
legally wrong by reference to some objective criterion: It is not the law just
because the judge said so. (TP, 370)

The motivation for concern about the relationship between inclusive posi-
tivism and moral objectivism, according to Soper, is that if moral objectivism
is false, then judges are necessarily legislating, instead of judging, when they

36. Philip Soper, Two Puzzles from the Postscript, 4 LEGAL THEORY 359, 36970 (1998) [herein-
after TP].
37. Soper does not intend that formal and substantive incorporation be mutually exclusive.
Indeed, what Soper defines as substantive incorporation is also a species of formal incorpora-
tion. For every standard that constitutes binding law requires a judge to proceed differently in
deciding a case than if no such standard applied.

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 Incorporationism and the Objectivity of Moral Norms 431

apply moral standards, because standards that lack objective standing can-
not serve as constraints on judges.
Soper is correct to think that what motivates Harts qualification of the
Incorporation Thesis is the view that judges would be legislating, rather
than judging, when applying moral standards if moral objectivism is false.
As we have seen, legally valid norms figure into adjudication by constraining
judicial decision making in circumstances in which they apply. But, on
Harts view, legally valid norms can constrain judicial decision making only
if there is an objective fact of the matter regarding the content of such
norms. For if there is no fact of the matter about the content of law, then
there is no possibility of the judge making a mistake about the content. It
would thus be up to the judge to decide on the basis of extralegal consid-
erations what that content isand that, of course, would involve legislating,
rather than just judging.
Nevertheless, Sopers misgivings go beyond the metaphysical worries that
motivate Harts qualification of the Incorporation Thesis to its implications
with respect to the legitimacy of judicial decision making: [I]f . . . the line
between judging and legislating is to be drawn entirely in terms of a
metaphysics of real (external) constraints, then ex post facto laws are
being imposed on the . . . society (TP, 371). Harts qualification is problem-
atic, then, from the standpoint of political morality because it involves
uncertainty about the legitimacy of judicial decision making: We cannot
know whether judges are wrongfully imposing ex post facto laws when
applying standards that incorporate moral norms without first knowing
whether moral objectivism is true.
The underlying worry is thus a familiar one that has been given voice by
theorists with commitments ranging from legal realism at one end of the
spectrum to Dworkins constructivism at the other. Brian Leiter describes
the worry as follows:

If law is indeterminate, then judges are unconstrained by law in their deci-

sion-making. But the proper institutional role of judges in a democracy is
simply to apply the law and to enforce the will of the legislature. To the extent,
then, that judicial decision is not really constrained by the law, the legitimacy
of the judicial role is called into question.38

On this view, there are two problems with judicial decision making when
law is indeterminate. First, according to liberal democratic ideals, lawmak-
ing is properly left only to institutions that are directly accountable to the
electorate. Since, on this line of reasoning, legislators are, whereas judges
are not, directly accountable to the electorate, only legislators can legiti-
mately make law.39 Second, judges typically apply their holdings to the case

38. Brian Leiter, Legal Indeterminacy, 1 LEGAL THEORY 487 (1995).

39. The force of this particular view diminishes as more judgeships are filled by election
rather than appointment.

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 432 KENNETH EINAR HIMMA

at bar. Insofar as a judge decides an indeterminate case by making new law

in the exercise of discretion, the case is being decided on the basis of a law
that did not exist at the time the dispute arose. If, for example, a judge
awards damages to a plaintiff by making new law in the exercise of discre-
tion, it follows that she has held the defendant liable under a law that did
not exist at the time the dispute arose. And, as Dworkin points out, it seems
patently unfair to deprive a defendant of property for behavior that did not
give rise to liability at the time the behavior occurred (TRS, 30).
But, as powerful as Sopers concerns about the legitimacy of judicial
lawmaking may seem, Hart does not share them:

There are many answers to [the criticism that judicial lawmaking is undemo-
cratic and unjust]. That judges should be entrusted with law-making powers
to deal with disputes which the law fails to regulate may be regarded as a
necessary price to pay for avoiding the inconvenience of alternative methods
of regulating them such as reference to the legislature; and the price may
seem small if judges are constrained in the exercise of these powers and
cannot fashion codes or wide reforms but only rules to deal with the specific
issues thrown up by particular cases. Secondly, the delegation of limited
legislative powers to the executive is a familiar feature of modern democra-
cies and such delegation to the judiciary seems a no greater menace to
democracy. (CL, 275)

Harts analysis here is largely consequentialist: Judicial lawmaking is morally

justified by the benefits of being able to fill gaps in the law as they become
apparent in legal disputes. Of course, it is probably true that Hart under-
states the moral difficulties presented by judicial lawmaking;40 at the very
least, his view should be restricted to judicial lawmaking in the civil context,
since there are strong moral considerations weighing against judicial law-
making in criminal prosecutions. But it is also true that Sopers assumption

40. The same is true of Dworkins view of judicial lawmaking. While Dworkin acknowledges
the existence of difficult cases that do not fall clearly under a rule, he believes they are not
resolved by an exercise of judicial discretion. On Dworkins view, there is always a right answer
to such cases implicit in the preexisting law. Of course, it sometimes takes a judge of Herculean
intellectual ability to discern what the right answer is, but it is always there to be found in
preexisting law. Since the right answer to even hard legal disputes is always part of preexisting
law, Dworkin believes that a judge can take property from a defendant in a hard case without
unfairness (TRS, 87130).
But if fairness precludes taking property from a defendant under a law that did not exist at
the time of the relevant behavior, it also precludes taking property from a defendant under a
law that did not give reasonable notice that the relevant behavior gives rise to liability. Due
process and fundamental fairness require reasonable notice of which behavior gives rise to
liability. Of course, one might argue that it is morally preferable to deprive someone of
property under a law that does not impart reasonable notice of what is required than to do so
under a law that did not exist at the time of the relevant behavior. But even if this is correct, it
is nonetheless prima facie unfair to deprive someone of property under a law that does not
give adequate notice of liability. As long as Dworkin acknowledges the existence of cases so
difficult that only the best of judges can solve them, his theory is vulnerable to the charge that
judicial decision making in hard cases is politically illegitimate.

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 Incorporationism and the Objectivity of Moral Norms 433

that judicial lawmaking is necessarily illegitimate exaggerates the moral

difficulties presented by judicial promulgation of ex post facto laws.
In any event, Soper attempts to meet these concerns about judicial
legitimacy by arguing that judges applying moral standards can be seen as
judging, rather than legislating, even if those standards do not have objec-
tive standing. On his view, insofar as a judge sincerely attempts to decide a
case according to some moral standard, her decision-making process can-
not be characterized as unconstrained. Whether objective or not, such
standards have the effect of constraining the judges decision in a way that
distinguishes her behavior from that of a legislator going about the business
of making a new law; constrained judicial decision making is judging, and
not legislating. Thus, on this line of reasoning, judicial application of moral
standards can be legitimate, even if these standards lack objective standing,
because those standards act as constraints that preclude judicial legislation.
For this reason, Soper concludes, nothing of importance turns for the
inclusive positivist on whether moral objectivism is true.
Hart, of course, believes judges decide hard cases by exercising a quasi-
legislative discretion, but he makes it clear that this does not imply the
implausible notion that judicial law-making authority is without constraint:

It is important that the law-creating powers which I ascribe to the judges to

regulate cases left partly unregulated by the law are different from those of a
legislature: not only are the judges powers subject to many constraints nar-
rowing his choice from which a legislature may be quite free, but since the
judges powers are exercised only to dispose of particular instant cases he
cannot use these to introduce large-scale reforms or new codes. (CL, 273)

What explains the judges discretion to make new law in a given case, then,
is not the absence of objective legal standards constraining her decision;
rather, it is the absence of objective legal standards that dictate a uniquely
correct answer to the case. The judge cannot decide such a case merely by
applying existing law because there is more than one available outcome that
coheres with existing law. In such instances, it is conceptually impossible,
on Harts view, to render a substantive decision (as opposed to simply
referring the matter back to the legislature) without creating new law.
This means that a judge can create new law, hence legislate, even when
the judges decision is constrained by legal standards.41 Incorporation,
formal or substantive, of moral standards into the law does not necessarily
preclude judicial lawmaking. And insofar as it is possible for judges to make

41. Here it is worth noting that law-making authorities in legal systems like the U.S. never
have what Dworkin describes as strong discretion. Even the legislative decisions of Congress,
the highest legislative authority in the nation, are always constrained by constitutional stan-
dards. For example, under the Fourteenth Amendment, Congress cannot enact a law that sets
one speed limit for male drivers on interstate highways and another for female drivers. Despite
being thus constrained, it is clear that Congress would be creating a new law if it were to require
a speed limit of 50 miles per hour on interstate highways.

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149

 434 KENNETH EINAR HIMMA

new law in the course of adjudicating cases, there remains an issue about
the political legitimacy of doing so. For this reason, Sopers account of why
Harts qualification of the Incorporation Thesis is problematic fails. If the
equivocal nature of Harts qualification is a problem, it has nothing to do
with the legitimacy of judicial lawmaking, because judicial lawmaking is
possible regardless of whether moral objectivism is true.
Harts belief that the Incorporation Thesis presupposes moral objectiv-
ism, then, poses no significant problems for his general theory of law. First,
the Separability Thesis, properly construed, is consistent with a commit-
ment to moral objectivism. Second, there is nothing essential to Harts
theoretical project that rests on the objectivity of moral norms; as we have
seen, Harts remarks suggest he simply would give up the Incorporation
Thesis if moral objectivism were shown to be false. Finally, since judicial
lawmaking is possible regardless of whether moral objectivism is true, Harts
qualification cannot be problematic because of its bearing on the question
of judicial legitimacy. What we are left with is just the equivocal nature of
Harts qualification, which is neither surprising nor problematic given
Harts persistent doubts about the objectivity of moral values.

http://journals.cambridge.org Downloaded: 19 Dec 2014 IP address: 140.254.87.149