Shapiro - An Argument Against The Social Fact Thesis (And Some Additional Preliminary Steps Towards A New Conception of Legal Positivism) (2008)

An Argument against the Social Fact Thesis (And Some Additional Preliminary Steps
towards a New Conception of Legal Positivism)

Author(s): Kevin Toh
Source: Law and Philosophy , Sep., 2008, Vol. 27, No. 5 (Sep., 2008), pp. 445-504
Published by: Springer
Stable URL: https://www.jstor.org/stable/27652662
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Law and Philosophy (2008) 27:445-504 ? Springer 2008
DOI 10.1007/sl0982-008-9024-z
KEVIN TOH
AN ARGUMENT AGAINST THE SOCIAL FACT THESIS

(AND SOME ADDITIONAL PRELIMINARY STEPS
TOWARDS A NEW CONCEPTION OF LEGAL
POSITIVISM)*
(Accepted 10 December 2007)
I. INTRODUCTION
At least since the publication of Ronald Dworkin's influential

set of articles in the late 1960s and the 1970s, participants in the
debate about the nature of law have commonly assumed a
particular conception of legal positivism. According to this
conception, the central thesis of legal positivism is that the
existence of a law, or the legal validity of a norm, is ultimately a
matter solely of some facts about the psychology and/or
behavior of a group of people. Somewhat differently put: the
central thesis of legal positivism, according to many philoso
phers, is that the ultimate grounds of any legal claim are only
some facts about the psychology and/or behavior of a group of
people. And by "grounds" here, I mean the considerations that
* The first, and very different, incarnation of this material was presented at
the 22nd World Congress of Philosophy of Law and Social Philosophy which
took place in Granada, Spain in May 2005. I learned from the discussion
following my presentation, and from subsequent correspondence with Matt
Kramer, Andrei Marmor, and Jerry Postema. More recently, I have benefited
from conversations with or comments from Steve Darwall, Adam Leite,
Brian Leiter, David McCarty, Scott Shapiro, David Velleman, and an
anonymous referee for this journal. I am most indebted to Gary Ebbs who,
during three separate conversations, was willing to be a sounding board and
also tried to improve my thinking on many issues discussed herein.

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446 KEVIN T0H
justify the relevant legal claim, or the considerations in virtue of

which the relevant legal claim is correct or true.1
Following Jules Coleman (2001, p. 75), I will call this thesis
"the social fact thesis". I will argue that the social fact thesis
should not be viewed as the central or the most fundamental thesis
of legal positivism as many legal philosophers believe. Instead, it
should be viewed as a particular, and a particularly problematic,
proposal to capture the more fundamental intuitions behind legal
positivism. Those fundamental intuitions are that the mere fact
that a norm satisfies the standards of morality does not indicate
that that norm is a law, and that the mere fact that a norm fails to
satisfy the moral standards does not indicate that that norm is not
a law (see Hart 1958, p. 55). Obviously, if the legal validity of a
norm were ultimately a matter only of certain behavioral and/or
psychological facts obtaining, then it would not be a matter of its
satisfying the standards of morality.2 But there may be other, and
better, ways to capture the fundamental intuitions of legal posi
tivism. My aim in this article is to take some preliminary steps in
carving out a space for an alternative conception of legal posi
tivism that does not adhere to the social fact thesis.
Throughout the article, I will use the term "social facts" to
refer to the empirical facts about human psychology and
behavior, and more generally "facts" to refer to what philoso
phers often call "natural facts"?i.e. facts of the sort that are
posited by explanations in natural and social sciences. I shall use
"factual statements" to refer to statements that describe or
represent facts, and contrast such statements with what I call
"normative statements". My terminology is not meant to indi
cate any meta-normative partisanship, and it is not my intention
in this article to prejudge the question of whether there are
normative or even moral facts, in a sense of "facts" different
from the one I choose to employ in this article.
1 What I do not mean in particular by "grounds" is the meaning of the

relevant legal claim. I believe that there is some tendency to conflate
meaning and grounds in Dworkin's Law's Empire (1986). Notice that we are
entitled to conflate the two only if we can assume verificationism or some
other equally implausible evidentialist conception of meaning.
2 Unless the satisfaction of the moral standards is itself a matter of certain
behavioral and/or psychological facts obtaining.

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AN ARGUMENT AGAINST THE SOCIAL FACT THESIS 447
I will first argue that a presumption against the social fact

thesis is created once we take seriously the following three theses:
(i) the distinction, famously made by Hart, between "internal
legal statements", or the legal statements made by practitioners
of law, on the one hand, and "external legal statements", or the
statements about laws made by theorists or observers of com
munities governed by laws, on the other; (ii) the normative
nature of internal legal statements; and (iii) an inferential gap
between normative statements on the one hand and factual
statements on the other. The social fact thesis can be interpreted
as a thesis about the grounds of external legal statements or as
one about the grounds of internal legal statements. Taken in the
first way, it is unproblematic; but taken in the second way, it
cannot be stably combined with the conception of internal legal
statements as normative statements. For the existence of the
inferential gap between normative statements on the one hand
and factual statements on the other makes it the case that among
the grounds of any internal legal statements there must be some
normative grounds as well as some factual ones.
I should say at the outset that I cannot offer here decisive
arguments against the social fact thesis (as a thesis about internal
legal statements). As a matter of fact, I will be quite brief and
perfunctory in my comments in support of the first two the
ses?the distinction between internal and external legal state
ments, and the normative conception of internal legal
statements?and attend mainly to the third thesis having to do
with the inferential gap between factual and normative state
ments, or the is-ought gap as it is commonly known. Even here,
my arguments will be aimed at creating a prima facie case in
support of a belief in the existence of this gap. My excuse for the
modest strengths of my arguments is not only the restrictions of
space, but also genuine difficulties (and the sheer size) of the
issues implicated by the three theses. It would be unreasonable to
expect definitive treatments of them in one article, even if it were
by an author of much greater powers than I. But notice that none
of the three theses is clearly false or outlandish. Actually, each is
quite plausible. My goal is to enhance their plausibility suffi
ciently so as to create a presumption against the social fact thesis.

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448 KEVIN TOH
After establishing a presumption against the social fact

thesis, I will go on to argue that, contrary to possible initial
appearances, the fact that internal legal statements require
normative grounds does not, by itself, warrant natural law
theories; and that it may be possible to devise a plausible
conception of legal positivism that recognizes and observes the
just-mentioned inferential gap. In support of this last conjec
ture, I will suggest some ways of extrapolating from the views
of Hart, whom both adherents and opponents of legal posi
tivism see as the prototypical legal positivist who was com
mitted to the internal version of the social fact thesis. It is not
clear to me that that is an accurate characterization. But I will
be less concerned in this article with interpretation than with
negotiating a way, based on Hart's views, to explore ways to
devise an alternative conception of legal positivism. It is be
yond the ambition of this article to develop a full-fledged legal
theory that confirms legal positivism. Instead, I will be pro
posing, based on Hart's views, a particular way of conceiving
internal legal statements as normative statements that are
distinct from moral statements. Such a conception of internal
legal statements would be a crucial component of a full
fledged legal theory that confirms legal positivism, and it
follows that a development of such a conception would be an
important step towards a new conception of legal positivism.
One clear virtue of the new conception of internal legal
statements that I will be proposing is that it is able to account
for what Dworkin calls "theoretical disagreements" in law. Or
so I shall argue.3
3 There are interesting parallels between this article and two recent arti
cles that reach conclusions similar to mine: G.A. Cohen's Tacts and Prin
ciples' (2003), and Mark Greenberg's 'How Facts Make Law' (2004). I
became aware of these articles only after writing initial drafts of this article,
and delving into the similarities and differences would have made this
already long article even longer. For these reasons, I will not here discuss the
arguments of these articles. I hope to have opportunities to get into the
comparisons on later occasions. Let me here note only a few obvious
differences. Cohen's article is not about jurisprudential matters, but is
formulated as a criticism of constructivism in political philosophy. But more
importantly, whereas he pointedly does not rely on the is-ought gap to argue

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II. RELEVANT SENSE OF "SOCIAL FACTS"
The social fact thesis, and its alleged status as the central thesis of
legal positivism, have been articulated in a variety of ways by a
number of legal philosophers over the years. According to
Dworkin, "[l]egal positivism has many different forms, but they
all have in common the idea that law exists only in virtue of some
human act or decision" (1977a, p. 70). Similarly, Joseph Raz
states: "In the most general terms the positivist social thesis is that
what is law and what is not is a matter of social fact (that is, the
variety of social theses supported by positivists are various
refinements and elaborations of this crude formulation)" (1979b,
p. 37). And Gerald Postema: "Law is a social fact; what is and
what is not to count as law is a matter of fact about human social
behavior and institutions ..." (1982, p. 165). David Lyons says:
"Laws are seen [by legal positivists] as brute social facts. To
determine the existence of a law and what it requires or allows is
to engage in an inquiry into the relevant facts ..." (1984, p. 37;
cf. p. 54). More recently, Jules Coleman has said: "Positivism
claims that the possibility of legal authority is to be explained ...
in terms of certain social facts. Call this the 'social fact thesis'; no
claim is more central to legal positivism" (2001, p. 75).
By "social facts" and similar expressions, these writers
mean the facts about human psychology and behavior, and
they intend to exclude what could be called "normative
facts". For example, Dworkin's statement was meant to be a
Footnote continued
for the need for appeals to norms or principles, I do rely on that gap. As for
Greenberg's article, which is on jurisprudential matters, the most obvious difference
is that whereas he takes the need to appeal to norms or principles as a consideration
against legal positivism, I see it as a consideration in favor of abandoning the re
cently prevalent conception of legal positivism and devising another conception. In
addition, Greenberg's is a metaphysical argument to show that "legal facts" are
partly constituted by "value facts". He in effects construes the "in virtue of or some
such relationship between contents of laws and their normative grounds or deter
minants as a metaphysical relationship. Whether there is some such metaphysical
relationship is something that I mostly bracket in this article because positing such a
relationship may prejudge some meta-normative matters. The best meta-normative
construal of legal and other normative or evaluative claims may be some form of
nonfactualism. For this reason, I have chosen to speak of the relationship between
legal claims and their normative grounds as a normative one.

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450 KEVIN TOH
generalized version of his earlier characterization of legal

positivism according to which whether a law exists in a
community is a matter of whether a particular norm has
been adopted or promulgated by certain social institutions in
that community (see Dworkin 1967, p. 17). These facts about
the "pedigree" of laws do not include normative facts. And
in laying out his particular version of the social fact thesis,
which he calls "the sources thesis", Raz also did not mean to
include normative facts among the relevant social facts. Raz
characterizes such facts, or "sources", as he calls them, as
follows:
A law has a source if its contents and existence can be determined without
using moral arguments (but allowing for arguments about people's moral
views and intentions, which are necessary for interpretation, for example).
The sources of a law are those facts by virtue of which it is valid and which
identify its content. This sense of 'source' is wider than that of 'formal
sources' which are those establishing the validity of law (one or more Acts of
Parliament together with one or more precedents may be the formal source
of one rule of law). 'Source' as used here includes also 'interpretative
sources', namely all the relevant interpretative materials. The sources of a
law thus understood are never a single act (of legislation, etc.) alone, but a
whole range of facts of a variety of kinds. (1979b, pp. 47-48)
What Raz calls "sources" seem to include more than the facts
about pedigree; they include "interpretative sources", which are
facts about people's normative views and intentions?i.e. facts
about their psychology. But once again, normative facts are not
included.
This is obscured to some extent by Raz's tendency, displayed

in the above-quoted passage, and often shared by other legal
philosophers, to contrast social facts only with moral consider
ations. One may wonder as a result about the possibility of social
facts including some nonmoral normative facts. But that is not
the case. The most important reason for Raz's advocacy of the
sources thesis is his belief that both the existence and contents of
laws must be publicly and fairly easily ascertainable by people
without their delving into the normative considerations that
justify the adoption of those laws (see Raz 1979b, pp. 50-52;
1985). Moral considerations are perhaps the most common or
obvious of such normative considerations, but there surely can

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be other sorts. More generally, as will become apparent later in

this article, the social facts that the advocates of the social fact
thesis have in mind are the facts that constitute some commit
ments?in the form of decisions, agreements, conventions,
etc.?of a group of people to some standards of behavior. These
are facts about the behavior and psychology of people.
Of course, some philosophers have argued that attributions of
psychological states, and of contents more generally, involve
deployment of normative judgments (see e.g. Kripke 1982;
Brandom 1994). If they were right, then ascertainments of social
facts themselves would inevitably require appeals to normative
considerations. But I believe that I am entitled to set aside this line
of thinking for the following reason. Whatever the nature of
psychological attributions, once that task is done, there is a
question as to whether some further appeals to normative con
siderations are necessary to determine whether a particular law
exists in a community or whether a law has a particular content.
According to the common conception of legal positivism, the
answer is negative. It is this answer (or a particular version ofthat
answer which I will isolate in the next section) with which I want
to take issue. For this purpose, in the spirit of philosophical
division of labor, I will bracket the line of thinking about the
normative nature of psychological attributions.
III. DISTINCTION BETWEEN INTERNAL AND EXTERNAL

LEGAL STATEMENTS
Those who, like me, consider Hart's distinction between internal

and external legal statements (and the companion distinction be
tween the internal and external points of view) more illuminating
than confusing and confused will no doubt notice that there can be
two very different versions of the social fact thesis. One version will
be about the grounds of internal legal statements; the other will be
about the grounds of external legal statements.
Hart's distinction can be summarized roughly as follows (see
Hart 1961/94, pp. 89-91, 102-103; cf. Bulygin 1982). Internal
legal statements are assertions o/Taw, made from the point of
view of an adherent of or a participant in a legal system (e.g. a
judge or a lawyer). External legal statements, on the other

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452 KEVIN TOH
hand, are theoretical statements about individual laws or legal

systems, made from the point of view of an observer (e.g. a
sociologist or an anthropologist).
Over the years since the publication of The Concept of Law, many
have complained about Hart's distinction, and wondered about its
correctness or usefulness (see e.g. Raz 1981; Postema 1982, p. 170). I
have even heard it referred to as Hart's "notorious" distinction
between internal and external legal statements. I too am not entirely
happy with all of the ways that Hart explicated and applied the
distinction.4 Nevertheless, my opinion is that Hart's distinction
usefully (albeit roughly) captures the distinction between statements
that we make from two different perspectives or points of view that
we can take with respect to human thought, behavior, and institu
tions?namely, the deliberative point of view of agents or partici
pants on the one hand, and the intentional or theoretical point of
view of observers or theorists on the other. And the distinction
between these two points of view has been an illuminating and useful
mainstay of practical philosophy at least since Kant.5
4 In particular, I find Hart's tendency to equate internal legal statements with

assertions of systematized norms wrongheaded, and I will point out later in this
article (? XI infra) one important way in which that tendency leads him astray.
5 This Kantian distinction is alive and well, and rightly so, in contemporary
practical philosophy. See e.g. Williams (1986, pp. 51-53); Smith (1994, ch. 5);
Korsgaard (1996); Wallace (2000); Gibbard (2003, p. 186). And I believe that
Hart's distinction should be seen in that light. For some indication that Hart
himself saw the distinction along this line, see Hart (1986, pp. 49-50). I have
elsewhere addressed Raz's very influential argument about the possibility of
what he calls "detached legal statements" that has been seen to cast doubt on
Hart's distinction. See Toh (2007). Postema supports his claim that Hart's
distinction is multiply ambiguous by arguing that Hart speaks of at least two
different kinds of external statements (1982, pp. 170-171). One kind is used by
judges to defend their internal legal statements; another kind is used by
anthropologists to defend their factual statements. I will argue later in this
article (? XI infra) that Hart should not be interpreted as saying, or at least that
he should not have said, that external statements alone can be used to justify
internal legal statements. In general, I am persuaded by Eugenio Bulygin's
arguments to the effect that some of the leading legal philosophers have ig
nored the distinction at their own peril. See Bulygin (1981, 1982). The latter
article contains an illuminating survey of the distinction as used in the twen
tieth century deontic logic and legal philosophy.

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An external legal statement by an observer (say, a sociol

ogist or an anthropologist) to the effect that a legal system
prevails in a community, or that a particular law exists or
prevails in a given jurisdiction may be challenged.6 According
to legal positivism, as construed by the external version of the
social fact thesis, a defense of such a statement can be carried
out fully by marshalling facts about the psychology and/or
behavior of the members of the relevant community or
jurisdiction. This is to be distinguished from natural law
theories, according to which the observer would in addition
have to deploy his normative thinking in order to determine
whether the purported legal system or individual law measures
up to some moral standard.
Alternatively, the social fact thesis can be construed as a
thesis about internal legal statements. According to legal posi
tivism, as characterized by such an internal version of the
thesis, in answering from the internal point of view a question
as to whether a law exists, or whether a norm is a law in a given
jurisdiction, a participant (say, a lawyer or a judge) would have
to find out only whether some facts about the psychology and/
or behavior of some people obtain. Such a position would be
distinguishable from supposedly natural law theories, accord
ing to which a participant (rather than an observer) would find
it necessary to deploy his normative thinking to determine
whether a law exists (see e.g. Dworkin 1977a, p. 77; Coleman
2001, p. 103).
I find the external version of the social fact thesis quite
plausible, and nothing I argue in this article is meant to dis
credit it. For the remainder of this article, I want to set this
external version aside, and concentrate on the internal version.
By "the social fact thesis" henceforth, I shall mean only the
6 Once again, in this paragraph and the next, I am setting aside the line
of philosophical thinking about the normative nature of psychological
attributions. See ? II supra.

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454 KEVIN T0H
internal version of the social fact thesis unless I clearly flag

otherwise. And let me use the term "social factualists" to refer
to the legal philosophers who support both legal positivism and
(the internal version of) the social fact thesis.7
One complicating factor in carrying out my argument is the
distinction between "exclusive" (or "hard") legal positivism
and the "inclusive" (or "soft") legal positivism, which has been
the subject of a lively recent jurisprudential debate. As I
understand that debate, exclusive legal positivism is the view
that the grounds of internal legal claims cannot include nor
mative, and more specifically moral, considerations, and must
be only some social facts; whereas inclusive legal positivism is
the view that the grounds of internal legal claims can (though
they do not have to) include normative, or more specifically
moral, considerations in addition to certain social facts. This
distinction may lead one to think that my foregoing charac
terizations of legal positivism is accurate only of exclusive legal
positivism, but not of inclusive legal positivism. But that is not
the case. For even inclusive legal positivists believe that moral
or normative considerations can be grounds of legal claims only
in virtue of certain social facts?e.g. the fact that a group of
people are committed to treating certain normative consider
ations as appropriate grounds of legal claims (see Waluchow
1994, ch. 5; Coleman and Leiter 1996, p. 243).8
7 It is not clear that all recent legal posivists are social factualists. Andrei
Marmor seems to support only the external version of the social fact thesis
in Marmor (2001), though he seems to me to muddy the waters when he
says: "The explanatory task [of a philosophical account of the normativity
of law] consists of an attempt to explain how rules or conventions can give
rise to reasons for action, and what kinds of reasons are involved" (32).
I take it that the "reasons" that Marmor is talking about here are strictly
motivating reasons, and not justificatory reasons. See Frankena (1958);
Smith (1994, pp. 94-98); Darwall (2005).
8 I actually believe that the grounds of all normative claims, including all
internal legal claims, must include some normative considerations. This is
another reason for thinking that the distinction between the two kinds of
legal positivism do not matter for my purposes. But I will not be arguing in
this article for a universal claim about the grounds of all normative claims.
Instead, I will be arguing that all normative claims that are conclusions of
deductive inferences have to have some normative grounds as well as factual

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Another complicating factor is that many social factualists

do not recognize or make use of the distinction between
internal and external legal statements. But I think it can be
plausibly made out that many legal positivists take the position
that defense of the central or paradigmatic uses of legal lan
guage to assert the existence of laws or to specify their con
tent?the kind of legal statements used by judges, lawyers, and
other practitioners of law?is ultimately a matter of, and only
of, appeals to some social facts. Raz's sources thesis illustrates
this point. He formulates that thesis as follows:
Statements of the form LR x, (j), i.e. there is a legal reason for x to (j) (which
means the same as 'Legally x ought to (j)', 'It is the law that x ought to 4>'),
are true, according to the sources thesis, because of the existence of a source,
i.e. an appropriate social fact specifiable without resort to moral argument.
(1979c, p. 65)
Raz rejects Hart's distinction between internal and external legal

statements, and consequently it is not always clear whether the
sources thesis is an internal or external version of the social fact
thesis. But there are times when Raz clearly characterizes the
thesis as applying to the grounds of legal statements that are
uttered by lawyers, judges, and other practitioners of law. He
says, for example, that the sources thesis reflects
a basic underlying function of the law: to provide publicly ascertainable
standards by which members of the society are held to be bound so that they
cannot excuse non-conformity by challenging the justification of the stan
dard. (1979b, p. 52)
And it is Raz's opinion that sources, and only sources, provide

such publicly ascertainable reasons. It is difficult to see Raz as
Footnote continued
ones. It follows that even if I were completely successful in my argument, I would
leave open the possibility that internal legal claims that are conclusions of nonde
ductive inferences have only factual grounds. But it should be borne in mind that an
inclusive legal postivist is extremely unlikely to think that two distinctions?namely,
(i) the distinction between internal legal claims that have only factual grounds and
those that have some normative grounds, and (ii) the distinction between internal
legal claims that are conclusions of nondeductive inferences and those that are
conclusions of deductive inferences?correspond exactly. And given the implausi
bility of such a correspondence, even my limited argument undermines the prevalent
conception of inclusive legal positivism as well as that of its exclusive counterpart.

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456 KEVIN TOH
espousing anything other than the internal version of the social

fact thesis in this and similar passages (see e.g. Raz 1980, p. 215).
The people whose ascertainment of reasons he is concerned
about are the members of a society, not observers of legal sys
tems such as sociologists. It is such participants, according to
Raz, who need to appeal to sources, and only sources, in
determining what legal reasons for action they have. It is the
social fact thesis as a thesis about the grounds of legal claims
made by such participants with which I want to take issue.
IV. NORMATIVE CONCEPTION OF INTERNAL LEGAL

STATEMENTS
Hart's distinction between two kinds of legal statements was

accompanied by his conception of internal legal statements as
normative statements. It can be thought that internal legal
statements and (internal) moral statements9 are similar in that
both necessarily purport to proffer reasons for action. Many
moral philosophers believe that moral statements have a con
ceptual or logical link to guidance of action, so that to make a
moral statement is necessarily to assert the existence of some
reasons for action.10 This is not the position that all moral
statements actually do succeed in proffering genuine reasons for
action, but rather that all moral statements, including patently
incorrect ones, purport to do so. The parallel position about
internal legal statements would be that all internal legal state
ments purport to proffer reasons for action. Once again, this is
not the position that all internal legal statements succeed in
proffering real reasons, but only that they purport to do so. One
version of this position would be that not only do internal legal
statements purport to proffer reasons for action, but also that
they purport to proffer reasons of a particular sort?namely,
deontic reasons of obligations, prohibitions, and permissions.
9 An observer may take the external point of view towards some com
munity's mores as well as of its laws. But for simplicity's sake, by "moral
statement" in the text, I shall invariably mean internal moral statements.
10 This is one plausible way of construing the upshot of G.E. Moore's
famous open question argument. See Moore (1903/93, ch. 1); cf. Mackie
(1977, p. 40); Darwall et al. (1992, pp. 116-118); Gibbard (2003, ch. 2).

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This last has been an influential position among legal phi

losophers, many legal positivists included. In fact, Hart's signal
contribution to the twentieth century legal philosophy consisted
of his arguments to show that if laws prevail among a com
munity of people, then at least some members of that com
munity treat existence of laws as furnishing reasons and even
obligations to act according to such laws, and that their
interaction with each other is characterized by uses of norma
tive language that display their acceptances of the laws as
creating such reasons and obligations. This is a departure from
the older legal positivist positions of Bentham and Austin that
Hart marked clearly:
The Imperative Theory... fails to account for a feature of statements of legal
obligation which cannot be characterized by the aid of Bentham's concep
tual resources of command and habit of obedience. This feature is what is
now called the 'normativity' of such statements and statements of the law or
the legal position of individuals under the law. To say that a man has a legal
obligation to do a certain act is... to assess his acting or not acting in that
way from the point of view adopted by at least the Courts of the legal system
who accept the law as a standard for the guidance and evaluation, of con
duct, determining what is permissible by way of demands and pressure for
conformity. Such statements are... statements of what individuals legally
must or must not do; similarly statements of legal rights are statements of
what individuals are legally entitled to do or not to do or to have others do
or forswear from doing. Such normative statements are the most common
ways of stating the content of the law, in relation to any subject matter,
made by ordinary citizens, lawyers, judges, or other officials, and also by
jurists and teachers of law in relation to their own or other systems of law.
(1966/82, pp. 144^145)
In other words, an internal legal statement to the effect that a

particular law exists purports to provide reasons?and more
specifically, Hart points out, reasons of the deontic variety?to
carry out or forswear certain actions.11
1 ] There are certainly moments in Law's Empire when Dworkin seems to

treat Hart's internal legal statements as descriptive statements that state the
existence of some social facts. See e.g. Dworkin (1986, pp. 32-33, 418-419
n.29). But in some more careful (if not so well-known) moments, Dworkin
does not seem to think that Hart, or any other a legal positivist, has to be
committed to such a characterization of internal legal statements. See e.g.
Dworkin (1977a, pp. 70-71; b, pp. 1-6).

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458 KEVIN TOH
Raz summarizes and agrees with Hart's normative concep

tion of internal legal statements when he says:
It is common ground to all legal positivists that the law has social sources,
i.e. that the content and existence of the law can be determined by reference
to social facts and without relying on moral considerations. This view led
early positivists such as Bentham, Austin, and to a degree also the American
Realists to a reductivist interpretation of legal statements. They claimed that
legal statements are synonymous with statements about what certain people
commanded or willed, or about the chances that a man may come to harm
of a certain kind, or about the likelihood that courts will reach certain
decisions. Professor Hart, while accepting the sources thesis, mounted a
most formidable criticism of reductivism. He argued that legal statements
are deontic or practical. They are used to demand and justify action and
thus function in discourse and argument in ways which no theoretical
statements could. (1979c, p. 53)12
I believe that Raz is in effect addressing the same issue when

he says that "it is an essential feature of law that it claims
legitimate authority" (1979a, p. 30). He elaborates: "[T]he law
holds itself, i.e. the existence of the relevant legal rule, to be a
reason which tips the balance and provides a sufficient reason
for the required act." Coleman agrees when he says: "The law
purports to govern our conduct, and to do so in virtue of its
status as law" (2001, p. 70). Similar claims have been made by
other legal philosophers who consider themselves legal posi
tivists (see e.g. Green 1985, pp. 342-343; 1999, p. 35; Marmor
2001, p. 25).
12 I will be arguing later in this article that the case for Hart's commit
ment to the social fact thesis (or more specifically, the sources thesis) is not
as obvious as Raz makes it out in this passage. Also, in reading this passage,
what should be firmly kept in mind is that while Hart argued against
reductionist analyses of internal legal statements, he was perfectly happy
with reductionist analyses of external legal statements. External legal
statements are what Raz in the above passage calls "theoretical statements".
See Hart (1961/94: 291 p. 86); cf. Baker (1977, p. 39); Bulygin (1981, ? II).
Coleman says things about Hart's anti-reductionism and the reductionism
of older legal positivists that are similar to what Raz says. See Coleman
(1998, p. 116; 2001, pp. 76-77). These are indications, additional to the ones
that I mention in the text hereinafter, that Coleman too is committed to a
normative conception of internal legal statements.

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I must confess a little uneasiness with their talk of what law

claims, holds itself to be, or purports to do. It seems to me
reasonable to translate such talk of what law itself essentially
claims or holds as talk of what internal legal statements
essentially purport to say. Alternatively, we can at least infer
from what such philosophers attribute to law itself that
internal legal statements that are meant to accurately repre
sent the contents of laws essentially assert the existence of
reasons and obligations. Once again, at least some of these
philosophers do not agree with Hart in distinguishing internal
and external legal statements. But all I want to take away
from their writings at this point is that the central uses of legal
language meant to accurately characterize what law says
necessarily purport to assert existence of reasons for action
and even of obligations. I believe that this last claim would be
acceptable to these philosophers. And it can be combined with
the distinction between internal and external legal statements
to conclude that internal legal statements are normative
statements in the sense that to make such statements is nec
essarily to assert the existence of some reasons for action, and
even obligations.
One may object to such a conception of internal legal
statements by pointing out that a person may perfectly well
make a legal statement without any intention of asserting the
existence of reasons to act in accordance with the relevant laws.
I do not deny this. But we should keep in mind that we are
concentrating on internal legal statements. At least some of the
legal statements that are uttered without the reason-giving
purport are external legal statements. In some other cases in
which we take the existence of laws with less than seriousness,
we may be uttering what Raz calls "detached legal statements".
These are statements of law, like internal legal statements (as
Hart conceives them), but unlike them in expressing only pre
tended or simulated commitments to the relevant laws (see Raz
1975/90, pp. 172-177; 1981). An example would be a libertarian
tax lawyer telling his client, "You ought to pay your income
taxes by April 15." It is a live question whether there are such
legal statements, distinct from both internal and external legal

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460 KEVIN TOH
statements as Raz and some others claim.13 If the phenomenon

of detached legal statements were real, it would mean that such
statements carry reason-giving force only in pretended or sim
ulated fashion.
The possibilities of external and detached statements in legal
contexts should not detract from the normative nature of the
more central uses of legal language. Notice that external and
detached moral statements are also possible. An anthropologist
may describe the mores, as well as the laws, of a community that
he studies. And a person (say, Thrasymachus or Hume's sensible
knave) may make an assertion of morality with only a pretended
or simulated commitment to its norms. But such possibilities are
not seen as casting doubt on the reason-giving force of the
central uses of moral language. Of course, external and detached
legal statements are much more commonly made than their
moral counterparts. But the statistical frequency alone does not
detract from Hart's core insights that laws can prevail only
where people treat certain norms as giving them reasons and
obligations to act in certain ways, and that such normative
commitments are displayed in the legal language through which
they interact with each other. External and detached uses of legal
language seem parasitic on these more central phenomena.
Clearly, a full defense of the conception of internal legal
statements as normative statements would exceed what I can
carry out in this article. Such a defense would involve a set of
arguments to show that this particular conception (along with
perhaps a particular meta-normative construal of it) better
explains the legal and related phenomena than alternative,
competing conceptions of the legal discourse. I cannot give such
a defense here. Instead, for the rest of this article, I want to
13 In addition to Raz's writings on the topic, see Baker (1977, pp. 41^42);
Finnis (1980, pp. 234-236). I discuss detached legal statements at length in
Toh (2007). As I argue there, it seems best to classify detached legal state
ments as a species of internal legal statements, but to distinguish them from
committed internal legal statements. But Raz's official position is that de
tached statements are distinct from what Hart conceived as internal legal
statements, and that the phenomenon of detached legal statements vitiates
the distinction between internal and external legal statements. I argue in Toh
(2007) that that is not the right lesson to take away.

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assume both the distinction between internal and external legal

statements, and the normative conception of internal legal
statements, and try to assess the social fact thesis in light of these
assumptions. Given the dominance of conceiving legal positiv
ism as committed to the social fact thesis, showing that that
thesis is incompatible with a quite reasonable conception of
internal legal statements should provide a compelling reason to
seek out a different conception of legal positivism. I will make an
informal case for this in the next section, before going on to
provide a more detailed case in subsequent sections.
V. INFORMAL ARGUMENT FOR THE IS-OUGHT GAP
Suppose that I come to you for advice. I am wondering whether

I should drive my friend Mary to the airport as I earlier promised
her, given that I very much would like to attend a concert that
overlaps in timing with the trip to and from the airport. Having
listened to my explanation of the situation, you tell me that
I certainly ought to drive Mary to the airport, and point out that
I made a promise to do so. "So what?" I ask. "Well, you ought to
keep your promises!" you thunder back. I tell you in response
that I am very much inclined to go to the concert, and point out to
you that I would be able to maximize my own pleasures by going
to the concert instead. "So what?" you ask. "Well", I say
somewhat sheepishly, "maximization of one's pleasures is what,
after all is said and done, each of us ought to be going for." You
walk away in disgust... (or something like that).
Notice that each of us initially named some fact in support of
the normative position that he took. But when the other person
did not automatically take that fact as counting (decisively) in
favor of the relevant normative position, each of us appealed to
a norm or principle according to which the named fact is a
(decisive) consideration in favor of an action.
A joint inquiry14 into what one ought to do obviously
need not stop as early as did the one that I just sketched. In
14 Of course, the inquiry need not be a joint one. It could be a solitary one
in which one person inquires as to what to do, or as to what the grounds are
for a particular normative position or decision.

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462 KEVIN TOH
philosophical and other settings, we can inquire further as to

why, for example, we ought to keep promises. You may point
out to me that only when promises are kept can people suc
cessfully pursue their projects.15 And I may then challenge the
norm that you are implicitly assuming?namely, that we ought
to facilitate people's pursuit of their projects. In response, you
may point out that people can achieve happiness only when
they are able to pursue their projects successfully. I may then
challenge your implicit assumption of the norm that we ought
to work towards people's happiness. And so on. At each stage,
facts alone do not provide sufficient grounds for the relevant
normative conclusion. And my conjecture is that facts alone
never do no matter how high up (or deep down, depending on
the metaphor one prefers) we go in seeking the grounds that
generate the normative force of our conclusions.
The example just used concerns moral reasoning and moral
conclusions. I believe that the same lesson applies for any nor
mative reasoning aimed at discovering the grounds of normative
conclusions, including (internal) legal reasoning and the grounds
of (internal) legal conclusions. A legal conclusion such as "You
are obligated to pay income taxes" can be challenged, and a
defense of such an internal legal claim would require not just
mentioning certain facts?e.g. what the appropriate sections of
the U.S. Code books say, and what legislators have done in the
past and what judges are disposed to do in the future?but also
appeals to norms making such facts relevant to, and perhaps
decisive considerations for, determining what ought to be done.
At some point, we will have to appeal to the federal income tax
laws the contents of which are recorded in the U.S. Code books
(rather than to the fact that they are recorded in those books), and
perhaps even the Sixteenth Amendment of the U.S. Constitution
authorizing Congress to levy income taxes.
Could someone ask why we ought to abide by what the
Sixteenth Amendment, or the U.S. Constitution, says? At the
beginning of his article "Law, Plans, and Practical Reason",
Scott Shapiro says that no American lawyer would challenge the
15 In elaborating this example here, I am borrowing from G.A. Cohen's

discussion in his (2003), from which I have learned much.

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legal bindingness of the U.S. Constitution (2002, p. 387). But then

he proceeds to say that we need a philosophical explanation of
why the U.S. Constitution is a binding law in the United States:
"What makes it the case that the United States Constitution is
law in the United States? What justifies the conviction of the
courts [to that effect]?" Shapiro says that natural law answers to
this question say that certain "moral facts" make the U.S.
Constitution the ultimate binding law of the United States,
whereas legal positivist answers say that certain social facts, and
more specifically a social convention among legal officials to treat
the U.S. Constitution as the ultimate binding law of the United
States, makes that to be the case (388).
Shapiro who favors the legal positivist approach counts as an
adherent of the social fact thesis.16 But it is not immediately
obvious to which version of this thesis?the external or internal
version?he is committed. As I said in ? III above, I am not
arguing against the external version of the social fact thesis. And
if Shapiro is claiming that observers who are trying to determine
whether the U.S. Constitution is the prevailing fundamental law
in the United States need only to examine certain social facts to
make this determination, I am inclined to agree. But Shapiro
sometimes sounds as if he is interested in determining the true and
ultimate grounds of an internal legal statement to the effect that
the U.S. Constitution is the fundamental law of the United
States. And if this is his query, I find the legal positivist approach
that he delineates and favors problematic.
If the last internal legal statement is a normative statement that
purports to proffer reasons and even obligations for action, as
many legal philosophers including Shapiro think, then its
grounds cannot consist merely of factual ones but must also
include normative ones. In reaction to Shapiro's proposal that we
are obligated to act as the U.S. Constitution requires because
16 My discussion of Shapiro's views in this article is limited to those

indicated in Shapiro (2002). A recent conversation with him leads me to
believe that his views have changed in significant ways since the time of that
article.

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464 KEVIN TOH
there is a convention (or a convention of a particular variety)

among legal officials to treat the U.S. Constitution as valid and
binding law, we can ask why that fact should obligate us. And
Shapiro in response would have to appeal to a norm that says
something to the effect that if such a convention (or a particular
variety thereof) exists, then we have reasons and even obligations
to comply with the norm that is conventionally practiced.181 am
not here trying to question the plausibility of any such response; I
am merely pointing out that some such response would have to be
forthcoming, and such a response would in effect be naming a
needed normative ground for the original internal legal claim.
Lest my concentration on Shapiro's particular views give a
misleading impression, I should point out that my argument
here is not limited to conventionalist variants of the social fact
thesis. Whatever kind of facts a social factualist names as the
crucial kind that supposedly generate reasons for action, we can
ask for a norm or norms that enable those facts to function that
way. Leslie Green for one, while adhering to the social fact
thesis, has argued against the view that the facts that ground
legal claims are facts of convention (see Green 1983, 1985,
1999). Green concentrates to a great extent on the inability of
conventions to generate obligations. While I find his arguments
convincing, I believe that there is a more fundamental inability
of social facts, whether conventional or of some other kind, to
generate reasons for action in general without the aid of norms.
17 Shapiro rejects what has until recently been the favored social factualist
view that conceives the relevant convention as consisting of practices
developed to solve recurring coordination problems. He along with Cole
man proposes that the convention be conceived instead as consisting of
shared cooperative activities along the lines that Michael Bratman has
proposed. See Shapiro (2002); Coleman (2001, lecture 7); cf. Bratman
(1992).
18 Shapiro may actually be doing that in ? XI of his article, but I am not
sure. He there says that people's psychological attitudes that partially make
up a shared cooperative activity generate duties and rights "in virtue of their
capacity to organize the behavior of the participants" (2002, p. 438). We can
read what Shapiro says here as an appeal to a norm that makes the existence
of certain social facts relevant to existence of some reasons and obligations.
Plausibility of such a norm can of course become an issue. Bratman seems to
express some doubts. See Bratman (2002, p. 517).

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VI. SOME CLARIFICATORY COMMENTS
Some words of clarification here that should be of help in

understanding not only the preceding arguments but also those
of subsequent sections. First, as I said in the penultimate par
agraph of the preceding section, I am not here trying to argue
for or against any particular normative reasoning or conclu
sion. To put the point somewhat differently, I am not here or
elsewhere in this article trying to uncover the true ultimate
grounds of our moral or legal obligations. I am concerned with
the nature of internal legal claims, and consequently with the
types of grounds they need, and not about their specific true
grounds. I am trying to motivate the view that normative
claims, insofar as their defenses or justifications are needed,
require some normative grounds in addition to any factual
grounds. It would follow that a person who sincerely asserts a
normative claim commits himself to there being, among the
grounds for his claim, some normative ground.
Second, there is an important distinction between two kinds
of justification of normative claims, and a corresponding dis
tinction between two kinds of justificatory grounds, that we
should keep in mind. Let me call the two kinds of justification
"genetic justification" and "nongenetic justification". As these
labels suggest, it is "genetic justification" that is the trouser
concept, to use J.L. Austin's term from the bad old days. Both
kinds of justification consist of furnishing considerations that
count in favor of normative claims. But in giving a genetic
justification of a normative claim, in particular, one would be
identifying and appealing to the considerations that generate or
engender the normative force of that normative claim. Not all
justifications are of this sort.19
19 The term "genetic justification" is suggested by Paul Horwich's dis

cussion of what he calls "semantogenetic" accounts of basic epistemic
norms. See Horwich (2005). I take it that Horwich's term is a play on the
frequent recent philosophical talk of the "sources" of normativity. (This
sense of "source" is of course a bit different from the sense that Raz has
given to that term.) Instead of "genetic justification", I would have preferred
to use "normative justification", but that term would have been question
begging in the current dialectical context.

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466 KEVIN TOH
The distinction can perhaps be best illustrated by an example

like the following. In response to utilitarians' assertion of the
principle of utility, one could ask for further genetic grounds
that underwrite the normative force of that norm. One plausi
ble utilitarian response to such a request would be to say that
there is no further ground that underwrites the principle of
utility; that that principle is the ultimate norm of practical
rationality.20 Another possible response would be an appeal to
some further considerations that can be seen to underwrite the
normative force of the principle of utility.21 But there may be a
different kind of challenge to the principle of utility, appro
priate responses to which would differ as well. Instead of
demanding that utilitarians point to the ultimate grounds of the
normative force of the principle of utility, one could ask for
some other considerations in favor of the credibility or
acceptability of the principle of utility, considerations that do
not themselves generate the normative force of the principle of
utility. Such a demand would be appropriate even when ad
dressed to utilitarians who believe that the ultimate status of the
principle of utility means that there cannot be further consid
erations that underwrite the normative force of that principle.
Such utilitarians could in response point to our intuitions or
judgments about some individual moral issues in which we have
some confidence, and argue that the norm that best justifies
those intuitions or judgments is the principle of utility. In
making this argument, utilitarians would not be treating the
individual moral intuitions or judgments as the grounds that
generate the normative force of the principle of utility. In fact,
in arguing that the principle of utility best justifies the indi
vidual moral intuitions or judgments, they would be using the
sense of "justify" that is different from the sense in which the
individual intuitions or judgments justify the belief in or
acceptance of the principle of utility. The former is the genetic
20 This presumably would have been Bentham's response. See Bentham

(1789/1970, p. 13).
21 For example, Mill appeals to certain psychological facts to defend the
principle of utility, and R.M. Hare appeals to the meanings of moral terms.
See Mill (1861/1979, ch. 4); Hare (1981).

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sense 22
of justification; whereas the latter is the nongenetic
sense.
I take the social fact thesis as a thesis about the genetic
grounds of internal legal statements. Social factualists see the
social fact thesis as a competitor to the natural law view,
according to which the standards of morality that legal
norms satisfy are ultimately responsible for generating the
reasons and obligations for action that those legal norms
purport to proffer. And social factualists have accordingly
appealed to the kind of social facts?e.g. explicit decisions,
coordination conventions, and cooperative activities among
22 Nelson Goodman famously argued that we ought to appeal to our

inferential practices to justify our rules of deductive and inductive infer
ences. See Goodman (1979/83, ch. 3). In my terminology, he was arguing
that our inferential practices could provide nongenetic grounds for the rules
of inference, but not genetic grounds. Thanks to Gary Ebbs for pointing out
the relevance of Goodman's views for the distinction I am making in the
text.
Let me here speculate a little on the nature of the distinction I am
making in the text. To be more precise than what I say in the text, I
speculate, whether a particular justification or ground is a genetic justifi
cation or ground is relative to a system or order of norms. Like legal or
moral norms, epistemic norms can be thought to form a system or order.
A system of epistemic norms would be a set of norms governing what to
believe or accept in what circumstances. See Field (1996, p. 362) for the
use of this idea for a somewhat different purpose. A justification of a
moral claim, for example, that is nongenetic with respect to the moral
system may be genetic with respect to the epistemic system, and vice versa.
In other words, a justification that does not appeal to a set of grounds that
generate the normative force of a normative claim as a moral claim may
constitute an appeal to a set of grounds that do generate the normative
force of the same claim as an epistemic claim. Among the norms that
constitute an epistemic system, I imagine, would be a norm that recom
mends inference to the best justification. When that norm is combined
with the individual moral intuitions or judgments in which we have some
confidence, and the fact that the principle of utility best justifies those
individual moral intuitions or judgments, then the epistemic system would
recommend inferring the principle of utility. Here, the appeal to the
individual moral intuitions or judgments would be a part of a genetic
justification relative to the epistemic system, although a part of nongenetic
justification relative to the moral system. Or so I speculate.

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468 KEVIN TOH
legal officials?that have certain amounts of intuitive attrac

tiveness.23 It is difficult to see their motivation as that of
providing anything other than genetic justifications of inter
nal legal statements.24 And in arguing in opposition to social
factualists that among the grounds of any normative state
ment must be some normative grounds, I too am (at least
thus far) concentrating on genetic grounds. I am arguing that
among the genetic grounds of any normative claim must be
some normative grounds in addition to any factual ones.
And by "justification" and "grounds" henceforth, I shall
mean genetic justification and grounds only, unless I clearly
note otherwise.
Third, I have in the preceding section assumed implicitly a sort
of foundationalism about genetic grounds, but I have not
assumed a general epistemic foundationalism that would be
controversial. By "genetic foundationalism", I mean the view
according to which the considerations that underwrite the
normative force of some particular normative claim form a
hierarchy of considerations with some privileged consider
ations at the top. The kind of privilege I am talking about
here is not epistemic privilege (such as that of self-evidence,
incorrigibility, etc.), but rather that of being the ultimate genetic
grounds. Notice that a belief in such a genetic foundationalism
may be arrived at by deploying a coherentist epistemology
(see Sayre-McCord 1996, p. 151). The assumption of genetic
foundationalism is ultimately disposable, and I employ it only
because a hierarchical picture seems a very natural view to take of
how legal norms are organized in a legal system. If we were to take
a more "coherentist" view of genetic grounds, then the point I
want to make would just be that a joint inquiry about the genetic
grounds of any normative claim would have to involve appeals to
23 This is clearly displayed in Coleman and Leiter (1996, p. 248), as well as

in Dworkin's characterization of legal positivism in Dworkin (1986, ch. 4).
24 Some social factualists may be seen to be talking about nongenetic
justification when they talk about social facts as serving an "identification"
function?i.e. enabling us to determine the contents of laws, and in par
ticular of ultimate norms of a legal system, or what Hart calls the "rule of
recognition". See e.g. Raz (1979c, pp. 68-69). I will be addressing this issue
in footnote 46.

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some normative considerations as well as to some factual ones

that together constitute, along with the normative claim in
question, a network of considerations that stand in relations of
mutual support.
I want to retain the genetic foundationalism that has been
implicit in my discussion, and this brings me to my fourth
clarificatory comment. Although I believe that any normative
statement must have among its grounds some normative
grounds as well as factual ones, if we stick with the founda
tionalist picture, then ultimately there must be some normative
statements that do not require any further grounds themselves.
Accordingly, the point I am arguing for is that a normative
statement, insofar as it has grounds, must have some normative
grounds as well as factual ones. It is not that any normative
statement must have some normative grounds. That would give
rise to an unfortunate regress.
VII. MAIN ARGUMENT FOR THE IS-OUGHT GAP
What I am in effect relying on in thinking that a normative

statement (insofar as it has or requires further grounds) must
have normative grounds in addition to any factual ones, is the
existence of an inferential gap between normative statements on
the one hand and factual statements on the other. This is the
so-called is-ought gap, supposedly argued for by Hume,25
according to which no owg/z/-statement can be derived from a
consistent set of /^-statements alone.
Notice what the existence of such an inferential gap would
mean for the tenability of the social fact thesis. If such a gap
were to exist, then any justification or defense of a normative
statement?e.g. an internal legal statement?would have to
appeal to at least one normative premise. Appeals only to
25 See Hume (1739-^0, pp. 469-470). I say "supposedly" because what

Hume actually had in mind is a much debated issue among philosophers and
historians of ideas. See e.g. Sapadin (1977); Sturgeon (2001). Prior (1949)
traces the history of the philosophical discussion of the gap to times prior to
Hume.
26 Consistency of premises is required because an inconsistent set of
premises would entail anything.

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470 KEVIN TOH
factual premises would not be sufficient for the justification of a

normative statement. Put another way, a person who makes a
normative statement would be implicitly committed to there
being, among any grounds of that statement, some normative
grounds in addition to any factual grounds. In sum, the exis
tence of the is-ought gap would make the social fact thesis
untenable.
The existence of the is-ought gap is a much contested
matter. But clearly there is a greater willingness among phi
losophers to think that such a gap exists when deductive
inferences are involved than when nondeductive inferences are
involved. By "deductive inferences", I mean to include not
only strictly deductive inferences the validity of which depend
only on logical forms, but also inferences the validity of which
depend on conceptual contents of premises and conclusions.
By "nondeductive inferences", I shall mean warranted or
reasonable, though invalid and defeasible, inferences. In
arguing for the is-ought gap in this and the following sections,
I will concentrate on deductive inferences. I actually believe
that the gap exists for nondeductive inferences as well, but I
am not sure about some aspects of arguing for such a con
clusion and for this reason shall restrict my discussion from
now on to deductive inferences.28 Since the social fact thesis is
a universal claim that all correct legal reasoning ultimately
27 Wilfrid Seilars and his followers call the latter "material inferences".
See Brandom (1994, pp. 97-98). Thanks to Gary Ebbs for alerting me to the
inaccuracy of my labels "deductive" and "nondeductive", and for the ref
erence. I have nevertheless retained the inaccurate labels for want of better
ones ("a priori" and "a posteriori" are even less serviceable), and in rec
ognition of other philosophers' uses of the same.
8 As Nicholas Sturgeon has suggested, the fact that nondeductive
inferences are not as well understood as deductive inferences partly explains
the fact that it is more difficult to diagnose what is wrong with contravening
the is-ought gap for nondeductive inferences. See Sturgeon (2002, p. 192
n.20). Sturgeon himself believes that the is-ought gap exists for nondeductive
as well as for deductive inferences, and explains the existence of the gap in
terms of the theory-dependance of evidence-assessments in general, and the
resulting mutual autonomies of various disciplines (201-203). But what this
reasoning supports is not so much the is-ought gap as numerous is-is gaps, as
I think Sturgeon will happily admit. Cf. Brink (1989, p. 167).

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appeals to only social facts,29 a convincing argument to

establish that the is-ought gap exists for any deductive legal
inferences should be enough to show that the social fact thesis
is untenable. For surely some sound internal legal reasoning is
deductive.
The existence of the is-ought gap is made plausible by the
fact that it would provide a ready explanation of our inferential
practices. Whatever some factual premise F says, in order to
derive deductively from it some normative conclusion N, we
would have to bring in an additional premise that says some
thing like:
(1) If F, then N.
The pressures of joint deliberation would reveal the need for an

additional premise like (1) in any normative disagreement. In a
normative disagreement as to whether N is the case, two dis
cussants would proceed to exclude from their attention all areas
of agreement, and try to focus on the areas of contention. They
may disagree about whether F is the case, but even when they
agree on F, they may disagree as to whether N follows. In such
a case, what gets isolated for dispute is something like (1). One
discussant would be claiming, while the other denies, that (1) is
the case and that it licenses the transition from F to N. For
example, two discussants may agree completely on what Jones
did, but disagree on whether Jones ought to be punished. In
such a case, what gets isolated for dispute is a statement like (1).
The need to bring in such an additional premise is explained by
the existence of an inferential gap between a description of what
Jones did, and the normative conclusion that Jones ought to be
punished.
If (1) can be thought a statement of a rule of deductive
inference, rather than a separate premise, then the fact that
(1) can become a focal point of disagreement in any normative
discussion would not show that there exists an inferential
gap between factual statements and normative statements. A
29 As I pointed out in ? III above, even inclusive legal positivists are

committed to this universal claim.

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472 KEVIN TOH
discussant's demand that his interlocutor show that (1) is the

case would then be as misguided as the tortoise's demand to
Achilles in Lewis Carroll's famous philosophical tale (see
Carroll 1895). The tortoise's demand was that a rule of
deductive inference be brought in as an additional premise to
guarantee the logical validity of a deductive inference. But what
results from complying with that demand is an undesirable
infinite regress, and Carroll's point was that it is a mistake to
treat rules of deductive inference as premises. But clearly, the
relevant transition from F to N would not be something that is
licensed by rules of deductive inference alone.
It may be more plausibly thought that (1) is an analytic
claim, and that the relevant transition from F to N is there
fore licensed by the conceptual connection between the com
ponent terms of F and of N, respectively. If that were the
case, then (1) would not be necessary as an additional pre
mise, as its meaning would already be contained in the initial
premise F. But in characterizing normative statements as
those that purport to assert existence of reasons for action, I
have in a way stacked the deck against conceiving (1) as a
mere analytic statement, and in favor of the existence of the
is-ought gap for deductive inferences. For there seems to be a
clear conceptual difference between the meaning of a state
ment that some facts, whatever they are, obtain and the
meaning of a statement that there are reasons to act in par
ticular ways. This means that any discussant involved in a
normative disagreement as to whether N is the case will have
to come to the conclusion that (1) cannot be seen as already
contained in F, and that (1) must be shown to be the case
independently in order to show that N follows from F. It may
be complained here that not all normative statements purport
to proffer reasons for action. But as I indicated in ? IV, we are
concentrating on what follows from the nature of the primary
or central sort of normative statements, which are, in the
terminology borrowed from Hart and Raz, committed inter
nal normative statements.
To be sure, there have been some influential arguments to
show that some factual statements do actually entail normative

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statements, and even statements of obligation (see e.g. Black

1964; Searle 1964).30 In effect, what is argued is that a statement
like the following is an analytic statement:
(2) If Jones, under certain circumstances C [specifiable in purely

factual terms], said "I promise to pay you Smith five dollars",
then Jones is under an obligation to pay Smith five dollars.
and that such a statement licenses a transition from a purely

factual statement to a normative statement. In order for this
argument to be relevant to the issue at stake, the consequent of
(2) must be a genuine normative statement, and not a mere
description of a community's normative views or commitments;
it must be what Hart calls an internal statement rather than an
external one (see Mackie 1977, ch. 3). Now, it may indeed
appear that a discussant who disputes (2) does not really
understand what "promise" means; and that the transition
between the purely factual statement, contained in the ante
cedent of (2), and the normative statement of the consequent of
(2) is licensed by the meaning of "promise" alone. But this
appearance is misleading. We are disposed to treat utterances
like "I promise to ..." as a "move" in the institutional setting
provided by the institution of promise-making, and to think
that a person who makes that move undertakes an obligation to
do what he says he will do. But in thinking thus we are pre
supposing or implicitly committing ourselves to the various
constitutive norms that make up the institution of promise
making. At least some of those constitutive norms are sub
stantive norms of action, and not mere semantic norms. (2) is
more plausibly thought a statement of one such substantive
constitutive norm, rather than as an analytic statement.
30 In addition, some philosophers and deontic logicians have shown that

there are some trivial exceptions to the deductive gap thesis. See e.g. Prior
(1960); Kurtzmann (1970). For example, we can derive from "Snow is
white" the normative conclusion "Either snow is white or murder is wrong".
As Jackson (1974) has shown, however, such examples can be excluded in a
non-ad hoc way by a slight modification to the deductive gap thesis. Since
the trivial exceptions and the required modification are not relevant to my
argument, I will ignore them in my discussion.

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474 KEVIN TOH
This last point can be brought out by again thinking of the

context of normative disagreement.31 Imagine two people dis
agreeing about when a promisor is obligated to act. One person
argues that if a promisor says "I promise to ...", and certain
conditions C obtain, then the promisor is obligated to act as he
promised. Another person argues that only when an additional
condition to the effect that the promised action is unlikely to
harm the promisee is satisfied, is the promisor obligated to act.
Now, it seems that such a disagreement could very well occur.
In other words, we do not have to see at least one of the two
people as conceptually confused in arguing for his view. Both
could be conceptually unconfused, but go on disagreeing. But if
this line of thinking is on the right track, then (2) cannot be a
mere analytic statement. (2) also cannot be considered a mere
description of a community's normative commitments unless
the consequent of (2) is thought such a description, and that
cannot be the case for the reason I pointed out in the preceding
paragraph. It seems more plausible to think of (2) as a synthetic
normative statement, and that the two people are carrying on a
substantive normative disagreement by asserting competing
synthetic normative statements.
The need to bring in a normative premise like (1) or (2) in
order to license the transition from any factual statement F
alone to any normative statement N indicates the existence of
an inferential gap between factual statements on the one hand
and normative statements on the other. All of this of course
is not to deny that there are facts that clearly call out for
some action. If a person is in pain, for example, then there is
a reason for those who can to alleviate that pain. But the
point is that the transition between the statement that the
relevant fact obtains to the statement of the reasons to act
cannot be accomplished by relying only on logical forms and
31 In the previous paragraph, I summarized what I take to be Hare's

argument against Searle's attempt to derive an ?wg/z?-statement from is
statements alone. See Hare (1964); cf. (1968). In this paragraph, I am
extrapolating on a point that I think Hare is making when he says that a
Machiavellian politician can, "without self-contradiction", think it his duty
to break some promises he has made, and think this while making the
promises (1964, p. 142).

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any conceptual relationship between the statement of the fact

and the statement of the reasons. (It is not the case, for
example, that "pain" means in part "to be alleviated".) In
stead, the transition is accomplished by appealing to a sub
stantive normative premise to the effect that we ought to
alleviate pain. It is because we find this last norm convincing
that we consider the fact that a person is in pain as calling
out for our attempts to alleviate that person's pain.
VIII. OBJECTION BASED ON UNOBVIOUS OR COVERT

SYNONYMY
It may be complained that my argument in the preceding sec

tion ignores the possibility of unobvious or covert synonymies,
and it may be wondered how I can be confident that no
meaning of F can entail some normative conclusion N.32 In
response, I concede that nothing I have said guarantees that
there could not be some purely factual meaning of F that entails
some conclusion with reason-giving purport. But attempts to
come up with a good example have repeatedly failed, and the
hypothesis that the is-ought gap exists for deductive inferences
provides a compelling explanation of those repeated failures.
We can strengthen the plausibility of the is-ought gap for our
immediate purposes by considering the kind of factual premises
that social factualists usually have in mind. Generally, they
seem to have in mind statements describing some commitments
to act in particular ways, or some practices that generate
32 In thinking that (1) has to be a substantive normative statement rather

than an analytic one, and relying on what I consider a clear conceptual
difference between factual and normative statements, I am ultimately relying
on thought experiments along the lines of G.E. Moore's open question
argument. See Moore (1903/93, ch. 1). And that argument is vulnerable to
some well-known objections. In this section, I will be responding to a ver
sion of one such objection according to which Moore ignored the possibility
of unobvious or covert synonymies. See Lewis (1989); Jackson (2003).
Another common objection says that even if Moore had hit upon a reliable
test for synonymy, he was committed to a defective test of property-identity
according to which two terms can designate the same property only if they
are synonymous. See Brink (1989, pp. 156-167); Sturgeon (2002, p. 196). I
will respond to a version of this last objection in the next section.

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476 KEVIN TOH
mutual expectations of acting in particular ways. If I were to

make a resolution to go swimming every morning, then I would
have a reason to go swimming tomorrow morning. If I were to
make an agreement with you to pay you a certain amount of
money in exchange for your delivery of some goods, then upon
your delivery of those goods I would be obligated to pay you.
And so on. Coleman nicely sums up this strategy when he says:
The naturalistic account that [legal] positivism provides by explaining law in
terms of social facts ... is just supposed to show how, by appealing to social
facts, we can see that law is in the same boat with a lot of other practices
that we normally suppose are capable of creating reasons and duties. Pos
itivism seeks to show that the way in which law can give rise to duties is no
more?and no less?mysterious than the way in which promises, pacts, re
ciprocal expectations, and so on can create duties. (2001, p. 159)33
Social factualists like Coleman do not specify whether the

inferences that they have in mind are deductive or nondeductive
inferences. I will proceed on what seems to me a reasonable
assumption that they mean to include some deductive infer
ences among the relevant set of inferences. And taken that way,
social factualists' arguments are in essentials no different from
John Searle's classic argument (1964) intended to show that
from the fact that someone promised to do something we can
deductively infer that he has an obligation to do that.
All such arguments implicitly appeal to something like:
(3) If a person commits (or resolves, promises, agrees, etc.) to 0, then
he has a reason (or even an obligation) to 0.
where the antecedent is a purely factual statement and the

consequent is a genuine normative statement. And this is just a
version of (1), and little different from (2). The question is what
the status of (3) is. Is it an analytic statement about what
"commitment", "resolution", "promise", "agreement", or
some such term means? Or is it a substantive normative state
ment? If the former were the case, then we would be able to say
that (3) is not a separate premise since it would already be
33 In this passage, Coleman is specifically addressing the suspicion that his

social fact thesis is an attempt to infer an owg/z?-statement from ?s-statements
alone.

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contained in the factual premise to the effect that a person

made a commitment (or resolution, promise, agreement, etc.),
and that would enable us to affirm the social fact thesis. But a
strong case for characterizing (3) as a separate normative pre
mise can be made.
In denying that (3) is an analytic statement, we are of course
not denying that many versions of (3) may be correct. The
following version, for example, seems quite compelling:
(4) If a person promises to 0, then he has a reason to 0.
We may of course come across a person who disagrees with us

about (4). Now, would we react to such a person as if he lacked
a proper conceptual understanding of what a promise is? Or
would we react by invoking further normative grounds in
support of (4)? My informal argument of ? V indicates that we
would react to such an interlocutor by invoking further nor
mative grounds. And if that is right, as I think it is, then that
indicates that (4) is a substantive normative statement. Social
factualists may respond that the further grounds that we would
appeal to can also be thought analytic claims that a proper
understanding of "promise" would contain. But consider the
kinds of grounds that I invoked in ? V; one consideration I
named there was that we ought to further people's happiness.
As we invoke more and more further grounds to justify a claim
like (4), attempts to portray such grounds as analytic claims will
look less and less plausible. Social factualists may also argue (in
the classic deontologist fashion) that the obligation to keep
promises is a normative bedrock, that it cannot and need not be
supported by additional normative grounds. This may be right,
but we can certainly imagine confronting an interlocutor who
appeals to additional grounds like that of furthering others'
happiness. Such a position may be substantively wrong, but it
would not be an instance of conceptual confusion. And that
means that (4) cannot be an analytic statement.
IX. OBJECTION BASED ON "METAPHYSICAL ENTAILMENT"
Another objection that may be brought against my argument of

? VII is that although (1) is unlikely to be an analytic statement,

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478 KEVIN TOH
it does not thereby have to be deemed a normative statement

since it could be a metaphysical statement asserting a meta
physical relation of identity, or of constitution, between what
some key component terms of F and N refer to, respectively.
In asserting that there is an inferential gap between factual
statements on the one hand and normative statements on the
other, and that no meaning of F can imply some normative
conclusion N, I am not excluding the possibility that there are
some meanings of F and N so that:
(5) Necessarily, if F then N.
Strenuous normative and empirical inquiries on our parts may

reveal that necessarily whenever some fact obtains, we ought to
act in particular ways. For example, it could be plausibly
claimed that whenever slavery exists, we have reasons to try to
abolish it. Some facts may necessarily call out for some actions.
And in such cases, to describe such facts would necessarily be to
describe what generates reasons for action. In other words, I
can concede that the arguments of the sort that I am relying on
do not show that there is no metaphysical relationship of
identity or constitution between what some key component
terms of F and N refer to, respectively (see Gibbard 2003, pp.
29-33). Such a relationship may hold, in which case F would
"metaphysically entail" N.
The important point, however, is that the supposed estab
lishment of (5) would have had to appeal to some substantive
norms or principles, and for this reason the metaphysical
relationship between F and N that we are entertaining would
not contravene the is-ought gap. Some may be inclined to think
that no such appeals to normative considerations are needed to
establish (5). But that may be the case only because they are
thinking of N as a factual statement to the effect that a norm
prevails among a community of people (or what Hart calls an
external statement), rather than a genuine normative statement
(or an internal statement).
The upshot of the discussion in the last three sections is that
the hypothesis that bridge premises like (3) are substantive
normative statements better explains our inferential practices

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than alternative hypotheses. That enhances the plausibility

of the is-ought gap for deductive inferences. In particular, I
believe, we can conclude that there is a presumption of con
siderable strength against thinking that any mere descriptions
of some mutual commitments of a group of people can entail,
without the benefit of some normative premises, a normative
conclusion about their reasons for action.
This is a significant result. Oliver Wendell Holmes famously
said that the life of law has not been that of logic (1881, p. 1).
Sure enough. But no reasonable lawyer can deny that some
sound legal inferences are deductive. Notice that the social fact
thesis is a very strong thesis. In effect, it says that all legal
reasoning ultimately appeals only to some social facts. All I
need in order to cast doubt on that universal claim is to show
that the existence of the is-ought gap is quite plausible for some
sound legal inferences that reach their ultimate grounds?as a
matter of fact, just one single instance thereof. And insofar as
there is a presumption for the belief that the is-ought gap exists
at least for deductive inferences, there is a strong reason for
thinking that the social fact thesis is false.
X. OBJECTION BASED ON THE NATURE OF RULES OF

RECOGNITION
Social factualists may point out that the social fact thesis says
that sound legal reasoning ends with appeals to some social
facts. In other words, they may take the view that although my
arguments thus far may be correct about intermediate grounds
of internal legal conclusions, it is incorrect about their ultimate
grounds.
Such a view is sometimes articulated in discussions of
what Hart calls "the rule of recognition" of a legal sys
tem?the highest-order norm of a legal system that specifies
the criteria of legal validity for other norms of that legal
system. Although there is some consensus among legal phi
losophers that internal legal statements in general are nor
mative statements, my impression is that there is no such
consensus about internal statements asserting the content of
a rule of recognition (or any part thereof)?or what I

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480 KEVIN TOH
propose to call hereinafter internal recognitional statements.

At least some legal positivists seem to think of all recogni
tional statements as factual statements that do not themselves
require normative grounds, and at the same time ground
subordinate internal legal statements.34 Alternatively, they
seem to think that internal recognitional statements are
normative statements that have only certain social facts as
their grounds. They seem to believe that the reason-giving or
even obligation-imposing force of any statement asserting the
content of a rule of recognition (or a part thereof) consists of
the fact that there is a customary or conventional practice
among a group of people of treating that norm as the ulti
mate norm of their legal system. Such legal philosophers
often refer to a rule of recognition as a "customary rule" or
a "conventional rule" (see e.g. Raz 1971, p. 94; Coleman
2001, p. 78).
Such a conception of the rule of recognition, and such
locutions, are unobjectionable if they are meant as external
claims about the rule of recognition. Often, however, legal
philosophers seem to treat the fact that a particular rule of
recognition is practiced (or more specifically, the "conven
tionality" of the rule of recognition) as providing a reason, or
even an obligation, for participants in the relevant community
to adhere to that rule of recognition. The following passage
from an article by Postema is a clear instance of such a position:
According to Hart, the validity (and so the normative significance) of or
dinary rules of law can be traced ultimately to a set of criteria of validity
which exist not as valid rules (identified by some further rule of validity) but
as social rules embedded in the law-identifying and law-interpreting activi
ties of officials, legal practitioners, and perhaps others. This potentially
complex, ordered set of criteria of validity is the rule of recognition. The
crucial insight of this doctrine is that law rests, at its foundations, on a
34 In other words, they may think that recognitional statements can be

only external legal statements. Such a view could be motivated in part by
Hart's claim that "[t]he assertion that [a rule of recognition] exists can only
be an external statement of fact" (1961/94, p. 110). I will discuss this quote
in the next section. I have argued in some detail elsewhere as to why Hart
should not be read as asserting in this sentence that recognitional statements
can only be external statements. See Toh (2005, pp. 90-91).

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special and complex custom or convention. It is my contention that this

notion of convention, when properly understood successfully bridges the
gap between social fact and genuine obligation... because a convention is
both a social fact and a framework of reasons for action. (1982, p. 166)
Similarly, Coleman, who defends a version of the social fact

thesis that he calls "the conventionality thesis", says: "The key
idea in the conventionalist picture is that [the rule of recogni
tion] provides reasons because it is adopted by individuals in
order that it guide their behaviour ..." (1998, p. 118). He fur
ther asserts that the fact that people accept a rule of recognition
"'turn[s] behavior into a rule'; it turns a social fact into a
normative one" (2001, p. 89). In other words, these and other
like-minded philosophers seem to treat the social fact thesis
about the rule of recognition as an internal thesis.
But this special treatment of the ultimate grounds of internal
legal statements is quite unwarranted. If my arguments in the
preceding three sections are correct, then statements describing
the social facts of the sort that Postema, Coleman, and other
like-minded legal philosophers discuss cannot by themselves
entail a normative statement asserting the existence of reasons
and obligation for action no matter what level of grounds we
are talking about. What I suspect all such legal philosophers are
appealing to in their arguments is some additional premise like
(3). But once again, for the reasons outlined above, such pre
mises are substantive normative statements, and not merely
analytic statements that allow a deductive derivation of ought
statements from /^-statements alone.
My suspicion is that social factualists do implicitly appeal to
substantive normative considerations. Postema seems to admit
as much in the following passage:
I must hasten to add that the normative force of the conventional rule of
recognition rests neither on the moral merits nor the inherent reasonableness
of the rule itself, nor on the judge's (or anyone else's) belief in such. It
depends simply on the fact that the rule succeeds in the task of coordinating
law-identifying and law-applying activities of officials and lay persons ....
But as long as the existing rule succeeds, and alternative rules cannot
promise success, and as long as achieving coordination is at least minimally
desirable, the existing rule will continue to generate (prima facie) obligations
on the part of officials to conform to it. (1982, p. 199)

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482 KEVIN TOH
Here, Postema seems to say that the minimal desirability of

coordination among legal actors is part of the ultimate grounds
for internal legal statements. The presence of this normative
ground seems to conflict with Postema's earlier claim that "[t]he
authority of the rule of recognition must rest exclusively on the
social facts of law-applying practice and the attitudes of offi
cials associated with this activity" (168; emphasis added).35
If social factualists were to stick to their official line, then
they would find it difficult to maintain the social fact thesis in
the face of the is-ought gap for deductive inferences. Perhaps
they would take the position that whatever the nature of
inferences about subordinate grounds of internal legal state
ments, inferences from the ultimate factual grounds to the
/^?ultimate (normative) grounds are nondeductive. But such a
move would surely be quite desperate and ad hoc, motivated
only by the desire to maintain the social fact thesis in the face of
arguments like mine. If we could find an attractive alternative
way to conceive legal positivism, then we could happily forgo
such motivation.
XL HART AND THE SOCIAL FACT THESIS
Before exploring the possibility of such an alternative concep

tion of legal positivism, however, I want to make some sug
gestions as to how Hart's legal theory may be interpreted or
adjusted to free it of any apparent commitment to the social
fact thesis. As I said at the beginning of this article, I am unsure
whether Hart was committed to the social fact thesis. His key
statements are sufficiently unclear, in my opinion, so that we
can treat my subsequent suggestions as interpretative propos
als. But I am ultimately unconcerned in this article as to whe
ther they amount to interpretations or revisions of Hart's views.
35 See also Coleman and Leiter (1996, p. 248). Raz's argument for the
sources thesis, briefly referred to in ? II above, also seems to appeal
implicitly to the desirability of the public ascertainability of existence and
contents of laws. Some legal positivists are quite clear-sighted about the
need for such appeals to normative grounds. See Green (1999, p. 38);
Marmor (2001, pp. 26-28)

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Either way, a reading of Hart that does not commit him to the
social fact thesis can be seen to point us towards a new con
ception of legal positivism.
Social factualists see their positions as following or further
developing Hart's (see Postema 1982, pp. 169-171; cf. Green
1999, pp. 37-39). And there certainly are important passages in
Hart's The Concept of Law that seem to lend support to the
social fact thesis. One such passage is from chapter 6 of The
Concept of Law:
[W]hereas a subordinate rule of a [legal] system may be valid and in that
sense 'exist' even if it is generally disregarded, the rule of recognition exists
only as a complex, but normally concordant, practice of the courts, officials,
and private persons in identifying the law by reference to certain criteria. Its
existence is a matter of fact. (1961/94, p. 110)
In another passage from a long endnote to chapter 6 elabo

rating on the nature of the rule of recognition, and distin
guishing it from Kelsen's "basic norm", Hart says:
The question whether a rule of recognition exists and what its content is, i.e.
what the criteria of validity in any given legal system are, is regarded
throughout this book as an empirical, though complex, question of fact,
(p. 292)
This passage, like the one quoted first, can be read as an
external claim about the nature of the rule of recognition. But
immediately afterwards, Hart says that a lawyer who makes an
internal legal statement "presupposes" the fact that some norm
exists as the accepted rule of recognition of his legal system, and
goes on to remark:
If challenged, what is thus presupposed but left unstated could be estab
lished by appeal to the facts, i.e. to the actual practice of the courts and
officials of the system when identifying the law which they are to apply.
Kelsen's terminology classifying the basic norm as a 'juristic hypothesis',
'hypothetical', a 'postulated ultimate rule', a 'rule existing in the juristic
consciousness', an 'assumption', obscures, if it is not actually inconsistent
with, the point stressed in this book, viz. that the question what the criteria
of legal validity in any legal system are is a question of fact. (p. 293; page
references to Kelsen's works deleted)
This particular passage gives the impression that, as Hart

sees it, a lawyer can meet any challenge to his internal legal

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484 KEVIN TOH
statement by simply marshalling factual evidence about the

practice of the members of his community. The passage clearly
seems to display Hart's commitment to the social fact thesis
about internal legal statements.
I believe that the situation is actually more complicated in
ways that may have had a strong repercussion for subsequent
jurisprudential debates. Right before the first passage I quoted
in the preceding paragraph, Hart says: "The assertion that [a
rule of recognition] exists can only be an external statement of
fact" (1961/94, p. 110). This sentence certainly gives an
impression that Hart thought that there could not be internal
recognitional statements. And this impression combined with
the other passages I have quoted suggest that any defense of
internal legal statements would ultimately appeal to the rule of
recognition of the relevant legal system, and that any response
to challenges to such recognitional statements in turn would
appeal only to a set of social facts. This would amount to the
internal version of the social fact thesis. And social factualists
were most likely influenced by these aspects of Hart's views.36
I have argued in some detail elsewhere as to why Hart should
not have said or implied, as he seems to on page 110 of The
Concept of Law, that recognitional statements can only be
external legal statements (see Toh 2005, pp. 90-91). Roughly,
Hart was misled by a too hurried equation of the distinction
between normative statements and factual statements on the
one hand, and the distinction between statements asserting
some norms systematized by some higher-order norms and
statements describing social facts on the other. He consequently
overlooked the possibility of internal, normative statements
asserting contents of unsystematized norms like rules of
36 I recognize that there are even more indications of Hart's commitment
to the social fact thesis in the posthumously published postscript (1994) to
The Concept of Law. But an impression I have, which I cannot defend here,
is that in his later years Hart was excessively and unnecessarily concessive to
others'?especially Dworkin's and Raz's?interpretations and criticisms of
his own views. This is apparent in some of the chronologically later essays in
Essays on Bentham (1982), and even more so in the postscript. For this
reason, I choose to discount the postscript as accurately reflecting Hart's
position. Cf. Toh (2007, pp. 14-18).

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recognition37?which are unsystematized because they are the

ones doing the systematizing. I suspect that Hart was here
influenced by an implicit skepticism about normative state
ments. He seems to have thought that internal, normative
statements are appropriate only when they asserted contents of
norms that come within the purview of some higher-order
norms that systematize sets of lower-order norms. In effect,
Hart seems to have thought that normative statements can
appropriately assert only instrumental norms. But this is an
unwarranted, and certainly unargued-for, position.
What I propose is that we read Hart as allowing the possi
bility of internal recognitional statements?i.e. normative
statements asserting contents of rules of recognition (or parts
thereof) that necessarily carry the purport of providing reasons
and even obligations for action. Once we read Hart that way,
we can make better sense of the passages like the following in
which Hart distinguishes among different questions or chal
lenges that may be raised about a rule of recognition:
There are, indeed, many questions which we can raise about [a rule of
recognition]. We can ask whether it is the practice of courts, legislatures,
officials, or private citizens in England actually to use this rule as an ultimate
rule of recognition .... We can ask whether it is a satisfactory form of legal
system which has such a rule at its root. Does it produce more good than
evil? Are there prudential reasons for supporting it? These are plainly very
important questions; but, equally plainly, when we ask them about the rule
of recognition, we are no longer attempting to answer [the question of legal
validity]... which we answered about other rules with its aid. When we move
from saying that a particular enactment is valid, because it satisfies the rule
that what the Queen in Parliament enacts is law, to saying that in England
this last rule is used by courts, officials, and private persons as the ultimate
37 For the same reason, he denies the possibility of internal statements in

primitive communities of only primary norms. See Hart (1961/94, p. 110). I
said in ? III above that I do not agree with every way in which Hart explains
and makes use of the distinction between internal and external legal state
ments. What I complain about in the text is one of such ways that I find
deeply problematic. Hart's view here would also imply that there cannot be
internal statements asserting contents of international laws. But at one point
his good philosophical instincts seem to get the better of his official view
when he discusses the internal point of view we adopt with respect to the
norms of international law. See Hart (1961/94, p. 220).

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486 KEVIN TOH
rule of recognition, we have moved from an internal statement of law

asserting the validity of a rule of the system to an external statement of fact
which an observer of the system might make even if he did not accept it. So
too when we move from the statement that a particular enactment is valid,
to the statement that the rule of recognition of the system is an excellent one
and the system based on it is one worthy of support, we have moved from a
statement of legal validity to a statement of value. (1961/94, pp. 107-108)
Here, and in similar passages (see e.g. Hart 1965, p. 359), Hart
seems to suggest that only sociological questions about whether
a rule of recognition prevails in a community can be answered
by marshalling social facts alone. On the other hand, normative
questions or challenges cannot be so answered. Normative
questions and challenges about the non-legal satisfactoriness of
following the rule of recognition presumably will have to be
answered by appeals to non-legal norms and principles of
morality, prudence, etc. Legal questions and challenges, in
which what is demanded are some higher legal grounds,
according to Hart, cannot be raised about the rule of recogni
tion since all questions of legal validity are answered by appeals
to that rule of recognition itself.38 Neither sort of normative
questions and challenges can be answered by marshalling social
facts only. And that means, according to this reading, that Hart
is not committed to the internal version of the social fact thesis.
XII. THEORETICAL DISAGREEMENTS AND THE SOCIAL FACT

THESIS
The adjusted reading may also enable us to avoid a rather

implausible and unattractive picture of law according to which
what the law is can never exceed or transcend the existing
practice in any community. This is the picture of law that
Dworkin has forcefully criticized by highlighting the possibility
of what he calls "theoretical disagreements" in law. Let me
explain.
It is not entirely clear what kind of normative questions and
challenges the appeals to social facts are meant to answer as
38 Hart even says, at one point, that to talk about the legal validity of a rule
of recognition is akin to talking about the accuracy of the standard meter bar
in Paris. See Hart (1961/94, p. 109); cf. Waismann (1965/97, pp. 144^145).

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social factualists see things. My impression is that at least some

social factualists believe that appeals to social facts answer
questions about the legal validity of rules of recognition.39 Raz
seems to endorse such a view when he says:
The legal validity of a rule is established not by argument concerning its
value and justification but rather by showing that it conforms to tests of
validity laid down by some other rules of the system which can be called
rules of recognition. These tests normally concern the way the rule was
enacted or laid down by a judicial authority. The legal validity of rules of
recognition is determined in a similar way except for the validity of the
ultimate rules of recognition which is a matter of social fact, namely those
ultimate rules of recognition are binding which are actually practiced and
followed by the courts. (1977, pp. 150-151; emphasis added)40
Context suggests that the "validity" Raz is speaking of in the

emphasized portion of the passage is legal validity. But
elsewhere Raz takes a somewhat different position, and clearly
says that appeals to social facts cannot provide legal grounds
for internal recognitional statements (1979c, pp. 68-69).
Even there, however, Raz says that rules of recognition are
39 Coleman says that appeals to social facts are meant to show how "any
particular law [can] secure its claim to govern conduct as law", and he
distinguishes that particular task from that of specifying "the conditions, if
any, under which the reasons the law purports to create are moral reasons"
(2001, pp. 70, 72). Similarly, Shapiro says that although the psychological
attitudes involved in the cooperative practices that ground rules of recog
nition generate rights and obligations, these rights and obligations are
"internal to legal practice", and such attitudes do not necessarily amount to
"morally legitimate authority structures" (2002, p. 438). I am inferring from
these remarks that, as Coleman and Shapiro see it, the appeals to social facts
are not meant to show that the relevant norms meet some extralegal stan
dards such as those of morality. That seems to indicate that they see such
appeals as meant to answer questions of legal validity. But I am very far
from certain that that interpretation is right. Another possible interpretation
is that appeals to social facts are meant to show that such facts generate only
pro tanto reasons that may be overridden by other weightier or more
stringent reasons such as those of morality. But Coleman and Shapiro's
emphases that the reasons generated by social facts are those of the deontic
variety seem to cast doubt on this particular interpretation.
40 Raz's talk of multiple rules of recognition and a hierarchy among them
is explained by his view that Hart was wrong to assume that a legal system
can have only one rule of recognition. See Raz (1971, pp. 95-96).

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488 KEVIN TOH
"identifiable by social facts" (69). By this, he means that law

yers and courts can specify the contents of particular rules of
recognition by examining certain social facts.
I am quite puzzled as to how this characterization of the
function of social facts is consistent with social factualists' main
aim of devising an explanation of how reasons and obligations
for action are generated by laws that is different from, and
competes with, the natural law explanation of the same. If the
ultimate norms of a legal system are merely identified by
appeals to some social facts, then that seems to mean that no
internal legal statement is ever correct ultimately in virtue of
social facts. Instead, internal legal statements would be correct
ultimately in virtue of the rules of recognition. Why is this not
an abandonment of the social fact thesis as a competitor to the
natural law explanations of how reasons and obligations for
action are generated?
But setting this worry aside, either way?that is, whether
social facts are deemed capable of answering questions of legal
validity, or as functioning only as identifying criteria?the
social fact thesis seems to imply that all legal disagreements are
of the sort that would cease when empirical investigations
establish that a particular set of ultimate criteria of legal
validity are accepted and complied with by the officials of a
community. Certainly, the empirical investigation involved
would be very difficult and perhaps practically impossible to
carry out fully, and any resulting finding inevitably would be
controversial (see Hart 1961/94, pp. 109, 147-154; Raz 1971,
p. 94). But even in an ideal situation in which such an investi
gation were fully carried out, and a particular answer firmly
established, could there not be an open question as to what the
law is?41 The negative answer to this question, to which social
41 We can imagine a judge who currently shares with his colleagues an

acceptance of a particular set of ultimate criteria of legal validity. Even such
a judge may ask himself whether he should continue to adhere to those
criteria, and a plausible account of legal thought and discourse, it seems to
me, should allow for that. As Allan Gibbard pointed out to me, my position
here is similar to his position on judgments involving thick ethical concepts.
See Gibbard (2002, pp. 163-165); cf. Hare (1981, pp. 17-18).

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factualists seem committed, would imply a conception of law

according to which what the law is does not (or cannot) ever
exceed or transcend the existing practice in any community.
It is this implication of the social fact thesis that prompts
Dworkin's arguments in chapter 1 of Law's Empire (1986).42
According to Hart's theory, as Dworkin interprets it, internal
legal statements are true insofar as there is a general social
convention among the members of the relevant community of
accepting and complying with the rule of recognition that val
idates the norms appealed to by the relevant legal statements
(pp. 34, 35). Moreover, as Dworkin sees it, Hart is committed
to the view that all competent lawyers of a legal system agree
that the existence of such a convention is the ultimate deter
minant of the truth or falsity of legal statements (pp. 7, 33).
Dworkin sums up these features of what he sees as Hart's
theory by describing Hart's view as "the plain-fact view of law"
(p. 33). Clearly, Dworkin sees Hart as committed to the social
fact thesis.
Inadequacy of a view like Hart's, as Dworkin conceives it,
becomes obvious when we consider the different types of dis
agreements that take place in actual legal settings. What
Dworkin calls "empirical disagreements" occur when judges
and lawyers agree about what facts need to obtain for a par
ticular legal statement to be true, but disagree about whether
those facts do actually obtain. But there can also be what
Dworkin calls "theoretical disagreements", which occur when
judges and lawyers agree on all factual questions, but still dis
agree on "what the law really is" (pp. 4-5). Dworkin discusses
some real legal cases to show that theoretical disagreements do
actually occur, and that when they do all participants?i.e.
lawyers, judges, legal commentators, etc.?treat the disagree
ments as disagreements about what the law is, rather than
about what the law should be (pp. 15-30). His point is that
Although Dworkin is there concerned to argue against a wide array of

legal theories, all of which he calls "semantic theories of law", he is most
concerned to argue against legal positivist theories, and Hart's legal theory
in particular.

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490 KEVIN TOH
Hart cannot account for occurrences, and even prevalence, of

such theoretical legal disagreements.43
The force of Dworkin's objection is diminished once we
interpret Hart's theory as not committed to the social fact
thesis. Freed of the social fact thesis, Hart would not be com
mitted to the view that all legal disagreements are empirical
disagreements. Since all internal legal statements would be
normative statements according to the revised Hartian theory,
and any grounds of such statements would include normative
grounds, some legal disagreements would certainly be norma
tive disagreements that persist beyond agreement on all factual
matters. But could some such normative disagreements be
disagreements about the rule of recognition of the relevant legal
system that persist despite agreement on all factual issues?
Could there be theoretical disagreements about the rule of
recognition as Dworkin seems to require? I believe that the
answer is positive and this can be seen once we take seriously
the normative nature of internal recognitional statements and
trace out its implications. Let me explain.
XIII. THEORETICAL DISAGREEMENTS WITHOUT THE SOCIAL

FACT THESIS
A lawyer may make an internal legal statement that a particular

norm, say R, is the rule of recognition (or some part thereof)44
of the legal system within which he speaks. He says:
43 Coleman seems to be responding to objections like Dworkin's in

Lecture 7 of his The Practice of Principle (2001, pp. 79-81). He says there
that the content of the rule of recognition of any mature legal system is
incompletely determined by the existing practice, but that the existence of
the rule is still a matter of convention because the existing practice furnishes
a "framework" within which the members of the community negotiate the
further development or extrapolation of the rule of recognition. But this
proposal, if I understand it correctly, seems to undermine the social fact
thesis. Unless the relevant practices completely determine how the devel
opment or extrapolation is supposed to go in the future, and Coleman does
not seem to mean that, it would not be the case that the grounds of all
internal legal statements are some social facts.
44 I will dispense with this tag in the rest of this section to facilitate my
exposition.

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(6) R is the rule of recognition of this legal system.
I realize that (6) is far from ordinary legal cant, in part because the
concept "rule of recognition" is hardly part of ordinary lawyers'
conceptual repertoire. But certain legal statements that ordinary
lawyers make could be regimented as (6) without distortion.
Now, according to the view (which Hart may have held) that
recognitional statements have to be external statements of fact,
(6) would have to be translated as:
(7) We actually treat R as the ultimate criterion of legal validity in
this legal system.
But once we abandon that view, we can construe (6) as a

genuine normative statement, and we can understand the law
yer as saying:
(8) We ought to treat R as the ultimate criterion of legal validity in
this legal system!
Or:
(9) Let us treat R as the ultimate criterion of legal validity in this
legal system!
(8) and (9) are meant to be straight analyses of (6). In effect, as I see
it, in internal recognitional statements like (6), the concept "rule of
recognition" is a normative rather than a descriptive concept.
Another lawyer may disagree with the first lawyer, and
respond by uttering:
(10) R' is the rule of recognition of this legal system.
In uttering (9), the second lawyer is saying:

(11) We ought to treat R' as the ultimate criterion of legal validity in
this legal system!
Or:
(12) Let us treat R' as the ultimate criterion of legal validity in this
legal system!
Again, (11) and (12) are straight analyses of (10). There are a
number of things I want to point out about this example.

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492 KEVIN TOH
First, although the two lawyers in the example are commit

ted to different contents of the rule of recognition of their legal
system, they are not talking past each other.45 They are both
talking about what set of norms they and their fellow members
of the community ought to treat as the ultimate criterion of
legal validity in their legal system.
Second, the example shows that not all disagreements have to
be characterized as those that are fully settled when all factual
issues are settled. Even when it is pointed out to the first lawyer
that the officials of his community currently accept and comply
with R' as the ultimate criterion of legal validity, he can hold fast
to his commitment to R and utter (6), and thus mean (8) or (9).
Since we have abandoned the social fact thesis, we do not have to
see the lawyer as incoherent or confused in both believing that
the officials accept and comply with R', and thinking that R is
the real rule of recognition of his legal system. And the second
lawyer can have mirroring opinions without confusion. This
means that what Dworkin calls theoretical legal disagreements
can be accounted for. It also means that members of a com
munity do not have to think that what the law is can never
exceed or transcend the existing practices of their community.
Third, notice that a lawyer who utters (6), and thus means (8)
or (9), is treating R as the ultimate criterion of legal validity in his
legal system. He does not thereby implicitly express his com
mitment to a yet higher-order norm that legally validates R.
Similarly, the second lawyer treats R' as the ultimate criterion of
legal validity in his legal system. He also does not thereby
implicitly display his commitment to a yet higher-order norm
that legally validates R'. The kind of legal disagreement I am
sketching here is therefore consistent with what I take to be
Hart's considered position on the nature of the rule of recogni
tion as displayed in the long passage from pages 107-108 of The
Concept of Law that I quoted at the end of ? XI. That passage does
not exactly deny that legal disagreements between adherents of
different versions of a rule of recognition can occur. Instead, it
denies that legal disagreements between adherents of different
45 They do not resemble two speakers who are talking at cross purposes
because they mean different things by "bank". See Dworkin (1986, p. 44).

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versions of a rule of recognition, in which the discussants assume

that there exist yet higher-up legal grounds by appealing to which
they can settle disagreements about the legal validity of the rule of
recognition, can occur. My proposal to treat the concept of a rule
of recognition as a normative concept is consistent with this
constraint.
Fourth, although there cannot be higher legal grounds
appeals to which can settle recognitional disagreements, there
could be other kinds of legal grounds appeals to which may aid
resolving such disagreements. Relevant here is the distinction
between genetic and nongenetic grounds that I discussed in ? VI.
What is meant in denying that there can be appeals to higher
legal grounds is that there cannot be further genetic grounds
that underwrite the rule of recognition. But that does not ex
clude appeals to other nongenetic grounds that lend credibility
to particular claims about the content of the relevant rule of
recognition. In ? VI, I talked about the possibility of utilitarians
enhancing the credibility of the principle of utility by showing
that that principle best justifies a number of individual moral
intuitions or judgments in which we have confidence. In such a
case, the individual moral intuitions or judgments would
amount to nongenetic grounds for the utilitarian claim. Anal
ogously, a lawyer may enhance the credibility of his internal
recognitional statement by arguing that his version of the rule of
recognition best justifies some of the low-order legal judgments
in which both he and his interlocutors have some confidence.
Two lawyers disagreeing about the content of the rule of rec
ognition of their legal system can appeal to various nongenetic
grounds in attempts to settle their disagreement.46
46 I should point out that the just-sketched way in which certain low
order legal judgments could constitute nongenetic grounds of internal rec
ognitional statements is quite different from the way that Raz seems to think
that social facts could constitute "identifying criteria" of a rule of recog
nition. For one, whereas Raz thinks that all undiscriminated social facts can
constitute the identifying criteria of a rule of recognition, I believe that only
the individual legal judgments in which we have some confidence can con
stitute nongenetic grounds. For another, even when the focus is narrowed to
the low-order legal judgments in which we have some confidence, it is not
just the fact that we make such judgments, or that fact plus the fact that we

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494 KEVIN TOH
XIV. SOME PRELIMINARY STEPS TOWARDS A NEW

CONCEPTION OF LEGAL POSITIVISM
The question that may be welling up in some readers' minds is

how my view, extrapolated from Hart's, that some recogni
tional statements are normative statements, and the resulting
picture of legal disagreements that I sketched in the preceding
section are different from those that would be defended by
natural law theorists. Let me respond to this question in a
preliminary way in the course of this section and the next. A full
and satisfactory response far exceeds what I can sketch in this
last portion of my article.
According to social factualists' conception of legal positiv
ism, a lawyer trying to determine, from the internal point of
view, whether a law exists, or whether a norm is a law in a given
jurisdiction, would have to find out only whether some facts
about the psychology and/or behavior of some people obtain.
Such a position was to be distinguished from natural law the
ories, according to which a lawyer would need to deploy his
normative thinking to determine whether a purported law
meets some moral standards (see Dworkin 1977a, p. 77; Cole
man 2001, p. 103). In arguing that all internal legal statements,
including internal recognitional statements, are normative
statements having normative grounds among any of their
grounds, I am rejecting the social factualist view that only
empirical findings are needed to answer internal legal questions.
I am agreeing with natural law theorists that normative rea
soning needs to be deployed to answer such legal questions.
I am, however, disagreeing with natural law theorists that
only they are entitled to hold that position. What I suspect is
Footnote continued
have some confidence in those particular judgments, that constitute nongenetic
grounds for any internal recognitional statements. The contents of the relevant low
order legal judgments are normative, and constitute normative nongenetic grounds
of the relevant recognitional statements. Also appealed to are various epistemic
norms, including the norm recommending inference to the best justification of low
order normative judgments in which we have some confidence. In sum, contrary to
the sources thesis, the particular version of the social fact thesis that Raz advocates,
the genetic and nongenetic grounds of any internal legal statements, including
internal recognitional statements, would have to include normative grounds.

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influencing at least some participants in jurisprudential

debates is the conflation of the normative-factual distinction
with the moral-nonmoral distinction. It makes sense to
characterize legal positivism as involving an insistence on the
distinction between law and morality; but it does not make
sense to characterize it as involving an insistence on the
distinction between law and the normative. Internal legal
statements are normative statements, and for this reason
have to include among their grounds some normative
grounds.47
Notice that we make normative judgments of many different
kinds, and they do not all converge in their assessments. Some
actions would be highly imprudent, but still morally required.
Some Wagner operas are morally repugnant, but strikingly
beautiful; many late Tolstoy stories are just the opposite. The
relationship between our moral and internal legal thinking can
be conceived in such a fashion. Both kinds of thinking are
normative, but their verdicts about same objects may diverge
and conflict. A person may have reasons and even an obligation
to act in a particular way when judged from the moral point of
view, but not so from the point of view of the law of the rele
vant jurisdiction, and vice versa. It may be thought that the talk
of "the moral point of view" is an unwarranted belittling of the
importance of moral considerations, and that what is morally
required is not something that is required merely from a point
of view, but instead what is required from any point of view, all
things considered. I am sympathetic to those philosophers who
think that the so-called overridingness or preponderance of
moral considerations is often exaggerated, and that sometimes
the thing to do may be what is contrary to morality (see e.g.
Williams 1986; Frankfurt 1982, 2004). But this point need not
detain us. Even if we were to think that what is required by
morality always trumps what is required as judged from other
47 My conjecture (which I cannot defend here) is that the conflation of the

normative-factual distinction with the moral-nonmoral distinction, along
with the failure or unwillingness to distinguish between the internal and
external versions of the social fact thesis (see ? III supra), go a very long way
to explain the prevalent willingness among legal philosophers to conceive
legal positivism in terms of the social fact thesis.

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496 KEVIN TOH
normative points of view, the normative nature of judgments

from those other points of view would not be put in jeopardy. I
believe that that would be the case also with the judgments
from the legal point of view. (Once again, we are here talking
only of committed internal legal judgments.)
It may be pointed out that what legal positivists have tra
ditionally insisted upon is the distinction between "law as it is
from law as it ought to be" (see Hart 1958, p. 50). The idea is
that law as it ought to be can be considered not only from the
moral point of view, but from a variety of normative points of
view. It may then be thought that the normative-factual dis
tinction is what we need after all. But the misguidedness of such
an objection can be seen by considering the moral analogue of
the legal positivist slogan. The fact that "morality as it is" and
"morality as it ought to be" are distinct48 does not mean that
we are not making normative statements in asserting what
morality, as it is, requires. Analogously, in making internal
legal statements, and thus asserting what the law, as it is in the
relevant jurisdiction, requires, we are making normative state
ments. And the legal positivist slogan is best read as an insis
tence on distinguishing "law as it is" from "law as it morally
ought to be" (or perhaps as an insistence on distinguishing "law
as it is" from "law as it all things considered ought to be").
XV. SOME FURTHER PRELIMINARY STEPS TOWARDS A NEW

CONCEPTION OF LEGAL POSITIVISM
Of course, we need to be able to distinguish our moral thinking

(or all-things-considered practical thinking) from our internal
legal thinking. I believe that we have a "folk" understanding of
48 Some may think that it does not make sense to try to distinguish
"morality as it is" from "morality as it ought to be", because either the two
are synonymous or the second is just nonsense. But such a position is
untenable because its adoption would make it impossible to make sense of a
critic who judges from a nonmoral normative standpoint that morality
ought to be quite different from what it is. Nietzsche and Bernard Williams
were radical critics who considered morality beyond repair, and conse
quently that we ought to abandon it outright in favor of something else
entirely. But we can think of less radical critics who would advocate mod
ifications to morality in light of other nonmoral normative considerations.

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this distinction, similar to the way that we have a "folk"

understanding of the distinction between our moral thinking
and aesthetic thinking. But this understanding can be sharp
ened and furthered by philosophical investigations into the
natures of both morality and of law. Hart begins The Concept
of Law by saying that his aim is "to further the understanding
of law, coercion, and morality as different but related social
phenomena" (1961/94, p. vi). And not only does he offer in that
book what I believe is still the most illuminating and accurate
theory of law, but in chapter 8 of that book also makes a very
promising start in distinguishing moral thinking from other
kinds of practical normative thinking. Other philosophers also
have offered proposals to distinguish moral thinking from other
kinds of practical normative thinking.49 This is a large and
ongoing project, and we should try to distinguish moral
thinking from internal legal thinking on the basis of the most
well-developed and plausible conceptions of morality and of
law that we can muster. What we should not do is to equate
morality with what is normative.
I am of course not in a position to offer full blown theories
of morality and of law. But let me, in closing, briefly and
somewhat dogmatically introduce a part of a legal theory
having to do with a characterization of internal legal state
ments, that may help us to capture the fundamental intuitions
of legal positivism. A fuller development and presentation of
this conception of internal legal statements will have to wait for
another occasion.50 And even a fully worked-out conception of
internal legal statements would be only a part of a full-fledged
legal theory that would be required to make a case for legal
positivism. With these caveats firmly in place, I proceed.
49 For example, Brandt (1979, ch. 9) offers an account of morality that is

very similar in many respects to Hart's. Gibbard (1990, part IV) argues that
morality deals with norms governing blame, which in turn can be explained
in terms of guilt and impartial anger. Scanlon (1998) conjectures that there is
a distinct part of ethics that deals with "what we owe to each other", and
can be appropriately called "morality".
50 I give a fuller presentation in Toh (2003, ch. 3), but I am no longer
satisfied with the details of that presentation.

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498 KEVIN TOH
Characterizing internal legal statements as normative state

ments, of course, does not mean that anything goes. A char
acterization of moral statements as normative statements does
not detract from the fact that in making such statements we try
to get things right, and the same is the case with internal legal
statements. But it may be argued that in making internal legal
statements, we take ourselves to be constrained not only by the
standards of normative correctness or desirability, but also by
additional factors. And it may be further claimed that these
additional factors are none other than the facts about what
people in our community do and think, have done and thought,
are disposed to do and think, and our societal institutions that
reflect those facts. The social fact thesis captures these addi
tional constraints on our internal legal statements, whereas the
two lawyers whose disagreement I sketched in ? XIII are
unencumbered by such constraints. For all I have said, what is
to prevent one of the lawyers from advocating some norm as
the rule of recognition of his community's legal system despite
the absence of social facts reflecting any societal support of that
norm, and merely because he thinks that that norm is the most
attractive ultimate normative standard all things considered?
I agree with much of what is motivating this objection, but I
want to insist that the additional constraints can be captured in
a way different from that of characterizing all recognitional
statements as statements describing some social facts, or char
acterizing internal recognitional statements as sui generis
normative statements that have only factual grounds.51 I too
believe that societal practices and institutions exercise a
"gravitational pull" (to use Dworkin's metaphor) on internal
recognitional statements, but not by constituting such state
ments' grounds or even identifying criteria.
Simply put, instead of characterizing internal legal state
ments as aimed at an accurate depiction or representation of
social facts such as a coordinative or cooperative convention
among the members of a community, I believe that they can be
characterized as aimed at initiation or maintenance of such
Or conceiving social facts as the identifying criteria of rules of recog

nition.

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facts. Let me use (6) from ? XIII as my example of an internal

legal statement. Once again, that internal recognitional state
ment says:
(6) R is the rule of recognition of this legal system.
I argued that (6) should be translated as:

this legal system!
Or:
legal system!
I propose that we understand a lawyer who makes a statement

like (8) or (9) as making a pitch to his interlocutors to treat R as
the ultimate criterion of legal validity in their legal system.
When there is an appropriate uptake on the parts of his
interlocutors, his internal recognitional statement is successful
to that extent. An internal recognitional statement like (8) or (9)
could also be made not to initiate a shared acceptance of some
norm, such as R, but in order to join in on an existing or just
proposed shared acceptance of that norm.
Given the aim of initiating or maintaining shared accep
tances of norms, a lawyer who makes internal recognitional
statements, and internal legal statements more generally, would
have to be quite mindful of the existing practices among his
fellow community members, especially the legal officials. He
would have to tailor his pitches in light of his fellow members'
normative opinions and practices if his internal legal statements
were to be successful in obtaining the appropriate uptake on
their parts. More often than not, he would not be able to go for
what he considers normatively the best all things considered,
but have to cater to what his fellows consider normatively
satisfactory. And should one of his pitches not meet with the
expected uptakes, he would have to be willing to withdraw it
and make a different pitch or accept another member's pitch
that has or will obtain the necessary uptake on the parts of his

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500 KEVIN TOH
fellows. In other words, a more accurate analysis than (8) or (9)

of internal recognitional statements like (6) is something like:
this legal system, on the assumption that others among us think
(or will come to think) likewise!
Or:
legal system, on the assumption that others among us think (or
will come to think) likewise!
The second clause of each formulation reflects the conditional
nature of this normative statement. And the parenthetical
phrase within that clause reflects the fact that a lawyer may
make an internal recognitional statement that is at variance
with the existing shared norm-acceptances. He would of course
have to withdraw his pitch should it not within some indeter
minate amount of time meet with uptakes on the parts of his
fellows. (13) and (14) can thus capture the kind of internal legal
statements that Justice Holmes made in his dissenting opinions
during the Lochner era.52
It is the conditional nature of (13) and (14) that ultimately
distinguishes my characterization of internal recognitional
52 As Steve Darwall pointed out to me, the analysis of internal legal

statements I am proposing here is quite similar to Gilbert Harman's analysis
of what he calls "inner ethical judgments" in Harman (1975). In detailing
my proposal in Toh (2003, ch. 3), I borrow much from Michael Bratman's
work on shared intentions. See Bratman (1992, 1993, 1997a, b). Other
authors, including some social factualists whose views I have discussed in
this article, also make use of Bratman's works on shared intentions. See
Shapiro (2002); Coleman (2001, lecture 7); Kutz (2001); cf. Gilbert (1999a,
b). Yet, my project and theirs are significantly different. I am using Brat
man's notions of shared intentions to devise an analysis of internal legal
statements. Whereas Shapiro et al. are attempting to come up with an ac
count of when laws exist, and more particularly of what social facts con
stitute the existence of a rule of recognition. They see the facts that
constitute shared intentional activities that Bratman describes as the kind of
social facts that underwrite existence of laws, and that also generate reasons
for action and obligations. My proposal, although it resorts to the same
theoretical resources, is far from having that social factualist goal.

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statements from how natural law theorists would characterize

statements asserting the contents of the ultimate norms that
govern operations of a legal system. Natural law theorists
would characterize such statements as a species of moral
statements. And it would be quite a departure from the usual
construal of moral statements to conceive them as being con
ditional on initiating or maintaining uptakes among others. I
do not believe that slavery is wrong only on the assumption
that there is a societal or judicial consensus on that opinion, or
that such a consensus will develop as a result in part of my
public claim to that effect. But that is the kind of conditionality
that characterize internal recognitional statements, and internal
legal statements more generally, as I conceive them. It follows
that a lawyer who makes an internal legal statement can clearly
distinguish this statement from moral statements that he would
be disposed to make about the same matter.
I said at the beginning of this article that the most funda
mental intuitions behind legal positivism are that the mere fact
that a norm satisfies the standards of morality does not indicate
that that norm is a law, and that the mere fact that a norm fails
to satisfy the moral standards does not indicate that that norm
is not a law. We are now in a position to appreciate the pos
sibility of accounting for these intuitions while conceiving
internal legal statements as genuinely normative statements,
and avoiding any commitment to the social fact thesis. A per
son who makes both a moral judgment and an internal legal
judgment about a matter may be able to see how they may
differ and diverge in their verdicts. The kind of conditionality,
or dependence on shared acceptances of norms, that charac
terize the latter judgment would enable him to see that the legal
correctness of a normative conclusion is not necessarily a
function of its moral correctness.
XVI. CONCLUSION
Recent participants in the debate about the nature of law have

commonly thought of the social fact thesis as the defining thesis
of legal positivism. I have argued in the early part of this article
that there is a presumption against the social fact thesis. Far

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502 KEVIN TOH
from thinking that this means that legal positivism ought to be

abandoned in favor of natural law theories, I believe that what
is called for is a radical refashioning of the debate about the
nature of law. I have sought to take some initial steps towards
that refashioning in the last part of this article. I am well aware
that what I propose there as a part of a novel conception of
legal positivism is tentative and raises many more questions
than I have answered. But given the problem with the social
fact thesis, I believe that attempts like mine to develop a version
of legal positivism that is divorced from that thesis are well
worth pursuing further.
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Department of Philosophy
Indiana University
026 Sycamore Hall, 1033 E. Third Street
Bloomington, IN 47405-7005
USA
E-mail: ktoh@indiana.edu

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Shapiro - An Argument Against The Social Fact Thesis (And Some Additional Preliminary Steps Towards A New Conception of Legal Positivism) (2008)

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An Argument against the Social Fact Thesis (And Some Additional Preliminary Steps

towards a New Conception of Legal Positivism)

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AN ARGUMENT AGAINST THE SOCIAL FACT THESIS

(Accepted 10 December 2007)

At least since the publication of Ronald Dworkin's influential

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justify the relevant legal claim, or the considerations in virtue of

1 What I do not mean in particular by "grounds" is the meaning of the

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I will first argue that a presumption against the social fact

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After establishing a presumption against the social fact

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II. RELEVANT SENSE OF "SOCIAL FACTS"

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generalized version of his earlier characterization of legal

This is obscured to some extent by Raz's tendency, displayed

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be other sorts. More generally, as will become apparent later in

III. DISTINCTION BETWEEN INTERNAL AND EXTERNAL

Those who, like me, consider Hart's distinction between internal

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hand, are theoretical statements about individual laws or legal

4 In particular, I find Hart's tendency to equate internal legal statements with

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An external legal statement by an observer (say, a sociol

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internal version of the social fact thesis unless I clearly flag

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Another complicating factor is that many social factualists

Raz rejects Hart's distinction between internal and external legal

And it is Raz's opinion that sources, and only sources, provide

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espousing anything other than the internal version of the social

IV. NORMATIVE CONCEPTION OF INTERNAL LEGAL

Hart's distinction between two kinds of legal statements was

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This last has been an influential position among legal phi

In other words, an internal legal statement to the effect that a

1 ] There are certainly moments in Law's Empire when Dworkin seems to

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Raz summarizes and agrees with Hart's normative concep

I believe that Raz is in effect addressing the same issue when

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I must confess a little uneasiness with their talk of what law

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statements as Raz and some others claim.13 If the phenomenon

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assume both the distinction between internal and external legal

V. INFORMAL ARGUMENT FOR THE IS-OUGHT GAP

Suppose that I come to you for advice. I am wondering whether

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philosophical and other settings, we can inquire further as to

15 In elaborating this example here, I am borrowing from G.A. Cohen's

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legal bindingness of the U.S. Constitution (2002, p. 387). But then

16 My discussion of Shapiro's views in this article is limited to those

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there is a convention (or a convention of a particular variety)

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