Robust Normativity and The Metaphysics of Law:

Situating the Positivist/Antipositivist Dispute1

By David Plunkett
Dartmouth College

ROUGH Draft of December 7, 2016

Do Not Cite, Circulate, or Quote Without Permission

Introduction.

Lots of possible actions have a determinate legal status, relative to the law of a given
jurisdiction (at a given time). For example, suppose an American citizen is considering
whether or not to pay taxes to the American federal government on the income she has
earned this year from teaching physics at a university in California. Is she legally
obligated to do so? Or suppose a French citizen is considering killing her neighbors
because she doesn’t like them. Is she legally permitted to do so? Or suppose a Greek
citizen is considering selling her car to a friend in exchange for money. Is she legally
empowered to do so? For each of these questions, it is hard to deny that the law of the
relevant jurisdiction (at a given time) – e.g., contemporary American law, French law,
Greek law, etc. – yields a determinate answer. (Yes, no, and yes, respectively).2 Of
course, the law might be silent on lots of questions about the status of certain possible
actions, or at least not yield a determinate answer on them. The important point is that
the law isn’t silent or indeterminate about all questions about the status of all possible
actions. Rather, the law – at least the law of most contemporary legal systems (e.g.,
American law, French law, Greek law, etc.) – does take a stand on the legal status of
some possible actions, and often on a great many of them.

This has something to do with the law itself being a certain determinate way in a given
jurisdiction, at a given time. Indeed, we might say that what it is for the law to be a

1 [add acknowledgments]
2 If you want to deny that the law does yield a determinate answer to these particular questions
(fleshed out in appropriate detail), then I invite you to substitute in your own favorite examples
here of actions have a determinate legal status, relative to the law of a given jurisdiction (at a
given time).

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determinate way in a given jurisdiction (at a given time) is just for it to be the case that,
relative to the law of that jurisdiction (at that given time), lots of possible actions have a
determinate legal status – e.g., the action is permitted, required, etc.

All of this so far is relatively uncontroversial in contemporary legal philosophy. Things

get much more controversial when ask questions about in virtue of what the law is what it
is (in a given jurisdiction, at a given time). The law being this way, rather than that way, in
a given jurisdiction (at a given time) isn’t a metaphysically fundamental fact, for which
there is no further explanation. Rather, any time that the law is one way or another in a
given jurisdiction, there is a further explanation that can be given of that fact. The
relevant notion of ‘explanation’ here that I want to target isn’t epistemic. Nor is it
causal. It is rather constitutive. It is the same basic kind of explanatory relation that is
invoked in the following (purported) explanations: a glass is fragile in virtue of being
disposed to break in such-and-such conditions; an action is morally right because it
promotes the greatest expected utility among the possible actions; and a movie is funny
in virtue of our dispositions to respond to it in certain ways, under certain conditions. For
my purposes here, I will use the terminology of ground to refer to the basic kind of
constitutive explanatory relation here, such that to say that ‘X grounds Y’ means ‘X
explains Y’ (in the constitutive sense of ‘explain’ I want to target here).3

Here is a basic dividing line in theories of what ground the facts about what the law is in
a given jurisdiction at a given time (henceforth, facts about the content of the law, or, more
simply, the legal facts). Some legal philosophers claim that legal facts are ultimately
grounded solely in social facts (roughly, descriptive facts of the kind that are the purview
of the social sciences), and not moral facts (roughly, normative and evaluative facts of the
kind that are the purview of moral and political philosophy). Drawing on one recently
influential way of thinking about the positivism/antipositivism dispute in legal
philosophy, we can call that thesis legal positivism. In turn, we can use the label legal

3For a good overview of some of the recent literature on ground, see (Trogdon 2013). It should
be noted that there might in fact be multiple different grounding relations (e.g., “metaphysical”
grounding vs. “normative” grounding), as argued for by (Fine 2012) and argued against by
(Berker Forthcoming). This is one of the many issues I am glossing over in this overview gloss
of grounding.

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antipositivism for the thesis that legal facts are ultimately grounded in both social facts
and moral facts.4

To help get these views in focus, consider the following two different views: (1) the
legal facts are ultimately grounded solely in descriptive facts about what shared plans a
group of agents has and (2) the legal facts are ultimately grounded in moral facts about
what best morally justifies a set of social practices. The first view (a version of which Scott
Shapiro argues for in Legality) is an example of a positivist view.5 The second view (a
version of which Ronald Dworkin argues for in Law’s Empire) is an example of an
antipositivist view.6

There are well-known motivations and arguments on both sides of this debate. For
example, positivists often emphasize the fact that there can be morally bad laws, and,
indeed, morally bad legal systems as a whole. At the same time, positivists often
emphasize that the legal facts are facts that seem to be directly under human control, in
a way that moral facts are not. Positivists claim to be able to explain these things more
smoothly than antipositivists do. On the other side of the debate, antipositivists often
point to the normative significance we give to the law in moral and political thought; a
significance that seems different than the kind we give to the rules of social
organizations that merely happen to have social power. And they also often point to
facts about on-the-ground legal argumentation, in which lawyers and judges seem to
freely cite moral facts as justifications for legal opinions about what the law is (and not
just what it morally should be). Antipositivists claim to be able to explain these things
more smoothly than positivists do.

In this paper, I reflect on this distinction between positivism and antipositivism,

understood (as above) as competing views about the ultimate grounds of legal facts. In
particular, I do two main things with respect to this way of thinking about positivism
and antipositivism. First, I make some proposals about how to best sharpen the

4 This way of defining positivism and antipositivism stems from (Greenberg 2006b), (Rosen
2010), (Shapiro 2011), and (Plunkett 2012).
5 (Shapiro 2011).
6 (Dworkin 1986).

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distinction to make it more philosophically precise and useful. More specifically, I pull
apart multiple distinct issues, all of which are worth thinking about. This involves
putting forward proposals about how to understand key different moving parts in the
definitions of positivism and antipositivism given above, including, crucially, what we
are after in talk of “moral facts”, as well as the idea of “ultimate” grounds. One of the
key ideas here is that, at least for many contexts, we should broaden our focus from
moral facts to robustly normative facts. In basic terms, I understand robust normativity to be
the highest-octane, most authoritative notion of normativity we appeal to in our
thinking. It is the kind of normativity we (at least prima facie) seem to appeal to when
we make claims about what one should do, think, or feel, all-things considered, or when we
appeal to moral facts (at least on many standard conceptions of them). This is in
contrast to thinner, more formal notions of normativity, such as the normativity
involved the rules of chess or the rules of etiquette. (I will say more about this
distinction below).

The positivist/antipositivist dispute concerns one important metaphysical issue about

the relationship between robust normativity and the law.7 But there are many other
important metaphysical issues as well, including some that are arguably more important
than this one. For example: issues about real definition, or essence. Many of these issues
do not receive the explicit attention they deserve in the contemporary discussion. The
second thing I do in this paper is briefly explore one of these other metaphysical issues,
which also concerns what role (if any) robustly normative facts have in our best
constitutive accounts of legal facts. This issue concerns what I will second-order
explanation. Thinking about this issue, I argue, helps us better situate the
positivist/antipositivist dispute, better understand the space of positions in legal
philosophy, and better evaluate views in the field. Moreover, as I emphasize in the
conclusion, it can also help us better diagnose points of agreement and disagreement in
legal philosophy and avoid merely verbal disputes.

7If you don’t like the label ‘metaphysical’ here, you can replace it with ‘object-level’. What I
want to highlight is this: the issue is about law and not about our thought and talk about it.

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1. Morality, Ultimate Grounds, and the Nature of the Positivist/Antipositivist Divide.

For many of our purposes, the definitions of “legal positivism” and “legal
antipositivism” that I started with are sufficient. This in the following respect: they help
us get at the basic distinctions between different kinds of views that matter to us in the
context at hand. This is true across many contexts involving philosophical inquiry and
discussion about the law. However, these definitions do not always provide us with the
tools we need once we start doing more serious work about the metaphysics of law.

One issue here concerns moral facts. Consider the following debate about morality.
Some philosophers accept what Stephen Darwall calls morality-reasons internalism.8 (This
thesis is also sometimes called “moral rationalism”). Darwall characterizes this thesis as
follows: “if S morally ought to do A, then necessarily there is reason for S to do A
consisting either in the fact that S morally ought so to act, or in considerations that
ground that fact.”9 The core idea here is that the demands of morality are necessarily
reason-providing, where the sense of “reason” here is our strongest, most high-octane,
normatively loaded sense of “reason” we have. In short, the idea is that morality
necessarily provides us with genuine normative reasons for action, where these are
understood as facts that count in favor of certain actions. Morality/reasons externalism is the
denial of this claim. It is the claim that it is a contingent matter whether or not morality
provides such reasons or not. A morality/reasons externalist might hold that morality
provides such normative reasons for some people in the actual world, but not all of
them. Or she might even hold that morality provides such normative reasons for
everyone in the actual world, but not certain agents in other possible worlds. The
thought, in rough terms, is that full-blooded normative force – which I have here glossed
in terms of “genuine normative reasons for action” – is not internal to the nature of
morality as such, any more than it is internal to other systems of rules (e.g., etiquette or
rules of sports).

8 (Darwall 1997)
9 (Darwall 1997, 306).

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There is a lively debate over moral-reasons internalism within contemporary ethics and
metaethics. This suggests the following. Even if we are confident that morality-reasons
externalism is false (as many legal philosophers no doubt are), the fact that many
philosophers are drawn to the idea helps bring out an importance conceptual
distinction. On the one hand, there is something along the lines of genuine normative
reasons for action; i.e., something that, roughly, marks out the idea of full-blooded
normative force. On the other hand, there is the idea of a system that is worth calling a
“moral” one for reasons other than that it necessarily has full-blooded normative force.
What might those reasons be? Different philosophers will have different things to say
here. Maybe it has to do with the content of the norms (or values) at issue; e.g., in terms
of which kind of conduct they are about.10 Or maybe it has to do with the purported
grounds of the norms (or values) at issue; e.g., that these are norms that we could justify
to others under certain conditions, or which people, in certain conditions, could not
reasonably reject.11 Morality-reasons externalists can (and often do) also grant that some
of these things are necessary features of morality as such. They need not deny that
morality exists, or that it is a distinctive normative system in some sense. Rather, they
just deny something about its intrinsic normative importance. Consider here also
someone (e.g., a kind of “moral skeptic”) who denies that morality even contingently
provides us with weighty normative reasons. She too might grant that some of these
above things are necessary features of morality as such. The point is just that not
everyone interested in “morality” will agree on the idea that it has full-blooded
normative force for agents like us.

In light of this, we then need to ask the following: when we are talking about “morality”
in the context of arguments about legal positivism, what really matters most to us here?
Are we concerned about the idea of full-blooded normative force (which many, though not
all, think is a feature of morality)? Or are we concerned about some of the other
features I glossed above, which many – though, again, not all – think are features of
morality? Or are we concerned about both things at once? Here is a conjecture:
different legal philosophers involved in the contemporary debate over legal positivism

10 See (Smith 1994) and (Jackson 1998) for this kind of proposal.
11 See (Scanlon 1998) for this kind of proposal.

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care more about some of these things than others, something that their patterns of
usage of the terms “moral” and “morality” reflect. (The same is true historically). For
example, consider the following thought experiment. Suppose the following three theses
all turn out to be true, and are recognized as such by legal philosophers: (1) there is such
a thing as genuine, full-blooded normative reasons for action, (2) morality reasons-
externalism is true, and (3) the legal facts are ultimately partly grounded in moral facts.
Would contemporary legal antipositivists think that thesis (3) thereby vindicates their
core idea, and see the establishment of (3) as a victory for their side of the debate over
positivism? I suspect at least many of them would not. Similarly, I suspect that many
contemporary legal positivists would not see the establishment of (3) as a defeat for
their side of the debate. Rather, I think, many would think the following crucial question
remains: are the legal facts ultimately partly grounded in facts about genuine, full-blooded
normativity or not? Regardless of the dispositions of current legal philosophers, the more
important point is this: I think this is a crucial question to ask about the grounds of legal
facts.

Should this question replace our original question about the ultimate grounds of legal
facts, which was formulated in terms of “moral facts”? Not necessarily. For example,
we might care about the relationship between the legal facts and the moral facts not
because of anything having to do with (purported) the full-blooded normative force of
moral facts, but rather because of other (purported) similarities between law and
morality. For example, consider the following: both law and morality seem to regulate a
wide swath of human action, both seem to claim some kind of authority not claimed by
all systems of norms (or values), and both seem to involve a certain family of concepts –
e.g., having to do with rights, duties, and obligations – that don’t seem to show up
across all normative systems in the same way. So, in many contexts within legal
philosophy, we might really be more interested in the (purported) features of morality
that the morality/reasons internalist and the morality/reasons externalist can agree to – as
well as the skeptic about morality who doubts that morality in fact has significant
normative force can also agree to. We might be wondering about whether the law is
grounded in moral facts, when morality is understood in such-and-such way.

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Based on this, I want to make the following methodological suggestion. For doing
serious work on the metaphysics of law, we would often do best not just to talk about
“morality” but to be more specific about which purported features of morality we care
about. In short: which of the various features that different philosophers associate with
“morality” are the ones we want to be focusing on here? We would often be best off to
focus on those things, and then talk about them directly. In the context of the
positivism/antipositivism debate – understood as an issue about what grounds what – this
means the following: in many contexts, we might well want to ask whether or not the
legal facts are grounded in the moral facts, where we just leave it completely open what
exactly the moral facts are like (roughly, we just let the chips fall where they may in
moral philosophy on this topic). But we might well have something more specific
(purported) feature of morality in mind, based on a particular view about what morality
is like: e.g., that morality necessarily provides genuine normative reasons for action, or
that it provides categorical as opposed to hypothetical reasons for action. If so, we should
just talk about that feature directly, and make that the focus of our debate.

With that in mind, let’s return to the idea of full-blooded normative force. What exactly
does the idea of such “normative force” amount to? It would be great to have an
answer to that question. But it is also beyond the scope of this paper to give anything
like a worked-out answer to it. Doing so would require going to the heart of
foundational debates in metaethics, and, indeed, in metanormative theory more broadly
construed. For my purposes here, what I want to do is introduce a contrast between
two kinds of normativity: a contrast that, I think, is at the core of much of the debate
over legal positivism. The contrast is between (A) the most full-blooded, high-octane
notion of normativity we have (roughly, the kind we invoke when we talk about
“genuine normative reasons for action” in ethics, or “genuine normative reasons for
belief” in epistemology) and (B) the generic idea of a standard that someone can fail to
conform to, or which can be used as a guide for behavior and action. Following
Tristram McPherson, let’s put this in terms of a contrast between robust normativity and
formal normativity.12

12 See (McPherson 2011). For further discussion of this distinction within the philosophy of law
(including how it shows up in theories of legal thought and talk, and not just in legal

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Formal normativity is plentiful in the world. The rules of board games have formal
normativity. So do rules of etiquette. Most of us think that there is an important
difference between failing to conform to the rules of chess and failing to conform to the
norms of good reasoning in epistemology, or to the all-things-considered ethical norms.
Those latter norms are meant to be (somehow) more authoritative, as a normative matter.
We can mark that by saying that they are meant to be robustly normative. Robust
normativity might, of course, be a chimera in the end: perhaps there is just no such
thing, or perhaps we can’t even unpack the metaphors here to make sense of it as a
coherent concept.13 These are important challenges. For our purposes here, what
matters is the broad idea of a contrast between formal and robust normativity, which
many take to be a compelling idea to work with, and clear enough for my limited
purposes at hand.

With the distinction between robust and formal normativity on the table, let’s return to
legal facts. It should be common ground that, whatever else it is, the law is a normative
system that has at least formal normativity (insofar as anything does). But a crucial
dividing line in theories of law is whether the law involves a thicker, more robust kind
of normativity. Those who are drawn to thinking we have a prima facie moral duty to
obey the law qua law seem to be arguing that it does. More importantly for our
purposes, so do many contemporary legal antipositivists, insofar as they believe a
version of morality-reasons internalism (which many, such as Ronald Dworkin and
Mark Greenberg, appear to do).14 So, with that in mind, we can say the following: one
of the issues that the positivism and antipositivism debate brings up is whether or not
the legal facts are ultimately grounded partly in robustly normative facts or not.15

metaphysics), see (Plunkett and Shapiro Manuscript). See also (McPherson and Plunkett
Forthcoming). McPherson’s distinction here draws from (Copp 2005), who discusses formal
normativity as “generic” normativity.
13 For skeptical discussion here, see (Tiffany 2007). For a defense, see (McPherson Manuscript).
14 See (Dworkin 2011) and (Greenberg 2014).
15 This resonates with Greenberg’s own way of thinking about what is really crucial in the

positivism/antipositivism debate. See (Greenberg 2006b) and (Greenberg 2006a).

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I am inclined to think that, for many of our purposes, in many contexts, we would be
best off regimenting our use of the labels “positivism” and “antipositivism” to refer to
competing views about this issue, thus leaving talk of “morality” entirely to one side.16
But I don’t here want to argue at length for that proposal about our use of the labels
going forward. And I am not sure there is a single best way to regiment use here, across
all contexts where we currently use these labels of “positivism” and “antipositivism”.
Rather, what matters most to me here is simply that we have clearly identified a range of
different issues that matter for discussion about the metaphysics of law.

We can also here note that much of my argument about “morality” above might well
apply to “robust normativity”. In other work, McPherson and I have suggested that, in
the end, there might not be a single thing that all philosophers are after in discussing
“robust normativity”.17 Rather, there might be a cluster of different features which we
tend to group together, but which are really distinct issues. Some of these might have to
do with the normative import or authority of facts themselves, as I have gestured to
above. But on that topic, there might in fact be a range of relevant features here we
discuss under the idea of “robust normativity”. Other features might have to do with
thought and talk (e.g., the kinds of speaker-endorsement that expressivists are likely to
take as markers of engaging in robustly normative thought and talk). It is not clear that
metaethicists (or metanormative theorists) all target the same thing – or even if they are
all talking about something at the object-level rather than the level of thought and talk –
when they talk about “robust normativity”. So, just as with talk about “morality”, those
of us involved in debates about the metaphysics of law would often do well to be more
specific about what exactly we have in mind with “robust normativity”, insofar as we in
fact have something more specific in mind (which we will often not).

There are further issues we can and should ask about the definitions of legal positivism
and antipositivism that I started with. Let me here mention a few of these further issues,
which interact with my discussion of robust normativity in interesting ways. One
important question is what exactly counts under the heading of “social facts”. For

16 For further discussion of this suggestion, see (Plunkett and Shapiro Manuscript).
17 See (McPherson and Plunkett Forthcoming).

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example, does it include all descriptive facts, or just some subset of them? And do facts
about the meaning of texts, or about mental content count as “descriptive” ones here or
not, given that many philosophers accept some version of the claim that “meaning is
normative”? Legal philosophers tend to go for a capacious view here, where pretty
much anything other than moral facts (or whatever the relevant alternative category here
really is – e.g., robustly normative facts) gets put into the bucket of “social facts”. That
might be the right thing to do in many contexts. But maybe doing so obscures
important dividing lines here – and, in any case, it is not at all clear that this is a
terminologically clear and epistemically helpful way to talk about the facts that we are
really concerned with here, whatever those turn out to be.

Another crucial question is what we mean by “ultimate grounds”. There are different
things we can have in mind here. One thing we might want to focus on is this: take the
social facts and moral facts, whatever turns out to ground each of those things, and then
state this is the level at which we start doing this localized part of metaphysics.18 Or we
might have something different in mind, where we are concerned with what facts do or
don’t show up in a more fundamental explanatory story of the legal facts (where facts
about grounds moral facts and social facts, respectively, will matter a lot).19 It is not
entirely clear here what the best way to proceed is.

How we proceed here in terms of our discussion of “ultimate grounds” will intersect
with the following thesis: the moral facts are fully grounded in social facts. This turns
out to be true on certain views in moral philosophy, such as, for example, views that
combine the following two theses: a) Humeanism about normative reasons for action,
according to which an agent A’s normative reasons for action are fully explained by
facts about A’s contingent psychological states (e.g., her desires) and b) the thesis that
morality can be explained in terms of reasons for action.20 Suppose the moral facts are
fully grounded in the social facts, and the legal facts are ultimately partly grounded in
the moral facts. Would that be a victory for positivism, or for antipositivism? One way

18 See (Shapiro 2011).
19 See (Greenberg 2006b) and (Greenberg 2006a).
20 For an example of such a view, see (Schroeder 2007).

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to go here would be to claim that what the positivist and antipositivist both care about
are the social facts other than the specific set of them that grounds the moral facts (insofar
as any do). As I have argued elsewhere, I think that is a good way to go for many of our
purposes.21 But notice how this loops back into my earlier discussion of what we cared
about when talking about “morality”. If the features we were interested in were not
morality’s (purported) robust normativity, perhaps this isn’t what we should say here
about this possibility of the moral facts being fully grounded in the social facts. Or,
more precisely: different philosophers will likely care about different things here,
depending on what was driving them to engage in the debate over the debate over
positivism in the first place. Our goal should be to zero in on the issues that matter to
them, consider whether they are philosophically interesting and significant ones, and
then talk about those issues directly.

Let me bring some of these different reflections together. If my above thoughts are on
the right track, one of the core lessons here is this: there are multiple different
philosophically interesting dividing lines in theories about what grounds the legal facts.
For many of our purposes in doing legal philosophy, it might be okay – relative to our
epistemic aims at hand –
to not worry about all of these dividing lines, and just focus on the very broad dividing
line that that I started with, when I introduced the initial definitions of positivism and
antipositivism. But for the purposes of doing more advanced work about what grounds
the legal facts, we will often need to pull these different issues apart, and then focus on
the particular ones that we think matter most.

There is a nearby, more general idea here in the background. If what we are interested in
is zeroing in on the issues about the metaphysics of law that matter most, we also need
to consider issues beyond just those about what grounds what. This, of course, is
something that legal philosophers are already doing, and, indeed, have done for a long
time: in addition to making claims about what grounds what, they make claims about
what explains why the legal facts are ultimately grounded in such-and-such facts, as well
as claims about the nature of law. We should strive to a way of thinking about the

21 See (Plunkett 2012).

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taxonomy of positions within legal philosophy that helps explain how different views on
these topics can interact, and which keeps distinct what are, in fact, conceptually distinct
issues in metaphysics. In the following sections, I will consider an additional kind of
metaphysical issues – one beyond issues about what grounds what, but still about
ground – that I think matters for building a better understanding of views about the
metaphysics of law.

2. Second-Order Explanation

Suppose that legal positivism turns out to be correct (where by “legal positivism” I
mean the revised definition of “positivism” I introduced in the last section). That is:
suppose it turns out to be correct that social facts alone (and not robustly normative
facts) ultimately ground the legal facts. Call that fact “fact F”. We can now ask about
what grounds fact F. Here, we face a choice: are robustly normative facts part of the
ultimate grounds of fact F or not? It might seem that positivists need to say “no”. I
think many should, given their other commitments, and given the motivations that they
cite for positivism in the first place. I will say more about this later. For now, the crucial
point is this: that answer is not logically entailed from positivism as such, given the
definition of ‘positivism’ I introduced in the last section. The same goes for the initial
definition I started the paper with. That is because the issue here is not about what
explains the legal facts. Rather, it is about what explains the explanation of the legal
facts.22

Interestingly, it might well be that certain important positivist positions are best
understood as holding that robustly normative facts in fact are amongst the ultimate

22 It might well be that, depending on how we understand “ultimate grounds” in the discussion
of legal positivism – in particular, if we understand it in such a way as to include facts about what
I am here calling “second-order explanation” – it may well be that such a view on which fact F
is explained by robustly normative facts is ultimately not a version of positivism after all. I put
that issue aside in what follows. This is because I take it that legal positivism is best understood
strictly as a view about what grounds what, and not about second-order explanation. For further
discussion of this basic kind of worry about this kind of Razian position, see (Plunkett 2012,
177-178).

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grounds of fact F. This idea might initially seem to suggest a form of prescriptive or
normative legal positivism. The rough idea of prescriptive legal positivism is that we
should create legal systems that are “positivist”.23 That is a claim not about what law is,
but rather about what it should be. Thus, it is not clear that it is discussing positivism, as
we have been understanding it here as a claim about what in fact grounds legal facts.
What I am interested in here is the possibility of a view which claims that robustly
normative facts explain the truth of positivism, rather than the distinct position of
normative positivism.

On this front, consider Joseph Raz’s influential arguments in favor of legal positivism –
and, in particular, a form of exclusive legal positivism, according to which moral facts are
never amongst the grounds of the legal facts.24 Raz appeals to substantive moral and
political views about the nature of practical authority in order to defend positivism.25 His
view thus seems to be a candidate for this kind of account.

The basic Razian argument for exclusive legal positivism goes something like this.26
According to Raz, what practical authority involves is this: having the ability to create
genuine obligations in virtue of one’s directives. For X to have practical authority over
Y, Raz claims, it will normally be the case that Y would do better at conforming to her
genuine reasons for action by following X’s commands, rather than trying to deliberate
herself about the issues at hand. This is what Raz calls “the normal justification thesis”.
27
The normal justification thesis is tied to Raz’s “service conception” of authority,
according to which the role of practical authorities is to serve their subjects (in Raz’s

23 See, for example, (Campbell 2004).
24 This is in contrast to inclusive legal positivism, according to which moral facts might be
amongst the grounds of the legal facts (those of certain jurisdictions, at a given time), but not
ultimately so. Rather, the idea is that they might be so in virtue of the obtaining of certain
contingent social facts – e.g., that the foundational rule that sets the standards of legal validity
(that is: a Hartian rule of recognition) involves appeal to specifically moral criteria. See
(Waluchow 1994) for a helpful overview and defense of inclusive legal positivism. My way of
glossing the distinction between exclusive and inclusive legal positivism, draws on (Shapiro
2011).
25 (Raz 1979/2002).
26 The argument I sketch below is a reconstruction of the basic argument from (Raz 1994).
27 This is what Raz calls the “normal justification thesis”. See (Raz 1985). See (Hershovitz 2011)

for a helpful overview of Raz’s normal justification thesis, and for Raz’s views on authority in
general.

14
view: by helping them better conform to their genuine normative reasons). Raz defends
the normal justification thesis and his broader service conception on explicitly
normative grounds.28 From the normal justification thesis, it follows that, if an agent X
in fact has practical authority over Y, then it must be that Y should not deliberate herself
about what they morally ought to do, but rather follows the commands directly. This
would be the case if the law in fact had practical authority over its subjects. On Raz’s
view, however, the law often does not have such authority – and, in any case, whether it
does or not is a separate moral/political question for Raz, not to be settled by this part
of his theory. But – and this is the part where Raz begins to links these claims about
authority to his views on the nature of law – Raz holds it is part of the nature of law
that it claims such authority. From this, he thinks it follows that the law must be set up in
a way as to make having practical authority possible. This possibility would be vitiated if
the law instructed agents to morally deliberate directly about the issues at hand. Rather,
they must be able to identify the content of the law without engaging in moral reasoning.
This is an epistemological constraint, which Raz thinks supports a particular
metaphysical view of the metaphysics of law: namely, he thinks it supports exclusive
legal positivism.

There is a lot more detail to Raz’s argument here which I haven’t include, and there is a
lot to say about the details of that argument. But, for my purposes here, the key point
doesn’t rest on the details. Rather, the key point is that Raz’s views about practical
authority are substantive normative views in moral/political philosophy. More precisely:
they are substantive views about robustly normative facts. Why should thinking about
such normative facts be epistemically relevant in figuring out whether legal positivism is
true or not? One straightforward reason would be this: because robustly normative facts
are amongst the ultimate grounds of fact F.

28 See (Raz 1985). It is important to note here that the relevant theses about practical authority
include ones that Raz calls “conceptual” ones. That might suggest that they are not substantive
normative views. But this is not the case. Raz claims that the relevant “conceptual” claims hold
partly in virtue of substantive normative facts, of the kind we are interested in within moral and
political philosophy. This is tied to his overall view of concepts. This point is underscored in the
final part of (Raz 1985).

15
Such a view – one that combines an appeal to robust normativity in the second-order
explanation with an endorsement of legal positivism – is arguably shared by other legal
philosophers as well. For example, it is arguably the case that John Finnis holds a
version of such a view about fact F, in combination with a view about the ultimate
grounds of the legal facts that bears a somewhat ambiguous relationship to legal
positivism. (Whether Finnis is classified as a positivist or not, relative to the kind of
definition I am working with here, depends in part on how one understands further
details about talk of “ultimate grounds”, as well as the details of Finnis’s theory).29

Perhaps more importantly, this view about the ultimate grounds of fact F that I am
considering here – namely, that it is grounded partly in robustly normative facts – is a
view held by a number of important legal antipositivists, including, crucially, by Ronald
Dworkin.30 Thus, this issue about what grounds fact F is important dividing line in
constitutive accounts of law thus crosscuts the positivist/antipositivist distinction.

It is important to emphasize that the view I am suggesting as a possibility here – one

that combines an appeal to robust normativity in the second-order explanation with an
endorsement of legal positivism – is different than another proposal, with which it
might be easily confused. A view that one might have is this: which aspects of reality we
should choose to focus our attention on when doing legal philosophy should be
influenced by moral/political considerations. In turn, this might be used as the basis for
a claim about how we should be using the term ‘law’: namely, we should be using it to
pick out a feature of social reality that is morally/politically important (perhaps in
addition to it being important for purposes of anthropological / sociological
explanation). This would be a proposal in what Alexis Burgess and I call conceptual ethics
– it is a view about which concepts we should use, and how we should express those
concepts.31 That view in conceptual ethics doesn’t entail anything about what explains

29 For Finnis’s core statement of his views on legal philosophy, see (Finnis 2011). See (Gardner
2001) for a discussion of how Finnis might indeed end up with a form of legal positivism.
30 See (Dworkin 2011).
31 See (Burgess and Plunkett 2013a) and (Burgess and Plunkett 2013b).

16
fact F (or facts that are parallel to it, for the relevant set of facts picked out by this usage
of “law”).32

This distinction that I have introduced here about second-order explanation – a

distinction about what kinds of facts are amongst the grounds of fact F – underscores
an important dividing line within different versions of legal positivism. On the one
hand, you have certain positivist theories that are best understood as coupled with the
view that the grounds of fact F do not involve any robustly normative facts. For
example, it is true of the version of Shapiro’s Planning Theory of Law that I have
defended in previous work – and, I think, also of the version of the Planning Theory
that Shapiro himself defends in Legality.33 On the other hand, you have the Razian view I
sketched above, a view which may or may not ultimately be best attributed to Raz
himself, but which, at the very least, draws on significant Razian resources. What is
interesting about this dividing line is this: facts that are grounded in robustly normative
facts seem very different in kind than facts that are not. Insofar as positivists differ on
whether or not fact F is grounded in such facts or not, they seem to be disagreeing
about something very fundamental about the metaphysics law. We would do well to pay
attention to this disagreement.

We should also pay attention to how views on second-order explanation relate to the
motivations philosophers cite for positivism in the first place. For example, many are
drawn to positivism because they believe it will help them secure a fully naturalistic
account of legal metaphysics.34 But this is not obviously so when positivism is combined
with the kind of second-order explanation I have been considering here, one which this
explanation makes reference to robustly normative facts. If there isn’t some further
naturalistic account of those facts (which metaethical non-naturalists such as Raz deny
there is), then this kind of legal positivism turns out to be that naturalist-friendly after

32 For further discussion of this kind of view, see (Plunkett Forthcoming), (Murphy 2008), and
(Stoljar 2013). It is worth noting here, that as I discuss in (Plunkett Forthcoming), Hart endorses
a version of this kind of view at the end of (Hart 1961/2012).
33 See (Plunkett 2012) and (Shapiro 2011).
34 This is an important motivation for many legal positivists. See, for example, (Hart

1961/2012). Raz’s own commitment to non-naturalism in metaethics puts him in a different

camp here, however.

17
all. In short: not all motivations for legal positivism sit well with different theories about
what explains fact F.

3. Conclusion.

When two legal philosophers agree on legal positivism, but disagree about the second-
order explanation of it, this appears to be a serious difference. In fact, it is the kind of
difference that should make us wonder whether these people are even offering theories
of the same thing, or rather talking about different things entirely. One diagnosis of this is
as follows: we might think of the term “law” as picking out something within a
normative moral theory, or within a descriptive sociological theory. For example, we
sometimes talk about the “rule of law” as an ideal within moral and political philosophy,
where this is a kind of moral and political achievement. In contrast, we distinguish
“law” from other ways of organizing human behavior, within sociology and
anthropology, without this involving any normative endorsement of this way of
organizing human behavior. It might well be that a) for the moral category of facts,
robustly normative facts enter into the second-order explanation here – indeed, we
might think that is true of the second-order explanation of all moral facts but b) this is
not true for the sociological category of facts. In both cases, for both sets of facts, it
might still be that the facts are fully grounded in social facts.

Suppose one philosopher is making a claim about a fundamentally normative kind, and
another making a claim about a purely sociological kind. If that is right, then both of these
philosophers might be correct in terms of the theses they each advance about the
respective thing they are talking about. Such theses might well be the core of the literal
content of what each of them says (that is, in terms of the semantics of what they say).
This might be true either in terms of what they say about first-order explanation (e.g.,
whether positivism is true) or second-order explanation (e.g., what grounds the fact that
positivism is true).

As I have argued in other work (including, most importantly, in joint work with Tim
Sundell), the fact that two speakers both speak truly in terms of what they literally say

18
doesn’t mean that there are not further issues between them over which they are
genuinely disagreeing.35 In addition to expressing disagreements via the semantics of
what we say, we also do so via pragmatic mechanisms – e.g., via implicature or
presupposition.

Consider the following. It might be that we are best off using the label ‘law’ in certain
ways when doing sociology, history, and anthropology, and other ways when doing
moral and political philosophy.36 Suppose that both legal philosophers in our above
scenario agree to that. That still doesn’t settle which ways those are. Thus, as I argue in
other recent work, legal philosophers in this sort of situation might disagree about the
normative issue (in conceptual ethics) of which way we should use the term ‘law’ moving
forward in the context at hand.37 Or they might disagree about the descriptive issue about
which context they are actually in. These are further substantive issues, and ones that
can often be well worth debating about. Moreover, given the rich pragmatic
mechanisms we have for communicating such disagreements (including what Sundell
and I, borrowing from Chris Barker, call “metalinguistic” usages of terms) these legal
philosophers might in fact actually be expressing such disagreements in their actual
linguistic exchanges – but just not through the literal semantic content of what they
say.38 In turn, insofar as legal philosophers disagree about these issues, they will likely be
tied to further ones they disagree about as well. In particular, it is rare to find a
disagreement in conceptual ethics that is also not tied to some further disagreement –
either a descriptive one about the way things are, or a normative one about what agents
should do, think, or feel.39

But, crucially, these are issues that might well be ones that the speakers themselves are
only implicitly aware of in their actual dispute. Focusing on them, and bringing them

35 See (Plunkett and Sundell 2013a) and (Plunkett and Sundell 2013b). See also (Plunkett 2015).
36 For more on this idea, see (Plunkett Forthcoming). For related discussion, although in an
importantly different theoretical framework, see (Dworkin 2006).
37 See (Plunkett Forthcoming).
38 See (Plunkett and Sundell 2013a) and (Plunkett and Sundell 2013b), drawing on (Barker 2002).
39 I discuss this at greater length in (Plunkett 2015), (Plunkett and Sundell 2013a), and (Plunkett

and Sundell 2013b).

19
into explicit discussion, might well help us make philosophical progress.40 At the same
time, it might also turn out that, for many exchanges between legal philosophers that
seem to be explicitly talking about different things (a sociological kind we call “law” vs.
a normative kind we call “law”), they simply do not have any further disagreement here,
once it becomes clear to them that one is talking about a sociological kind, and the
other a normative kind. Thinking about second-order explanation can help us better
appreciate whether these are the sorts of issues at play here or not; and, thus, it can help
us better identify which issues need to be addressed in order to help move the debate in
legal philosophy forward.

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