In this passage, the author discusses the relationship between law as it is and law as it ought

to be, and the implications of moral judgments on this distinction. The author addresses the
criticism of legal positivism, which emphasizes the separation between legal norms (law as it
is) and moral values (law as it ought to be).

The author first acknowledges that the distinction between what is and what ought to be in
law is often associated with subjectivist, relativist, or noncognitive theories of morality.
These theories argue that moral judgments contain noncognitive elements such as
subjective preferences, emotions, or attitudes and cannot be rationally justified or derived
from statements of fact alone. The author highlights that while some legal positivists, like
Austin and Bentham, did not embrace these theories, the distinction between is and ought
has been mistakenly conflated with them.

The author then explores contemporary variants of these moral theories, which suggest that
moral judgments are based on subjective preferences, feelings, or chosen principles of
action. According to these views, moral judgments are not rationally justifiable like factual
statements and cannot be derived solely from statements of fact. The author argues that all
these theories share the common insistence that statements of what ought to be done are
fundamentally different from statements of what is the case.

However, the author presents an alternative perspective that rejects these noncognitive
theories and denies a strict separation between facts and values. This perspective suggests
that moral judgments can be rationally defended, just like any other judgments. It posits
that moral values are not merely subjective preferences or emotions but are based on an
understanding of the world and can be objectively reasoned and debated.

The author then considers the implications of accepting this rejection of noncognitive
theories for the distinction between law as it is and law as it ought to be. The author argues
that even if moral judgments can be rationally defended, it does not automatically affect the
nature of legal rules. Laws, regardless of their moral quality, would still be considered laws.
The difference lies in the ability to demonstrate the moral wrongness or desirability of a law
based on rational arguments. However, proving the moral qualities of a law does not
determine whether it is or is not a law.

To further explore the connection between law as it is and law as it ought to be, the author
introduces the perspective of Professor Lon Fuller. Fuller's argument focuses on the
interpretation of legal rules in concrete cases. He suggests that there are instances where
the extension of a rule to new cases does not involve a deliberate choice or legislative fiat.
Instead, it appears as a natural elaboration or implementation of the rule's purpose. This
perspective challenges the notion that such interpretations should be seen as legislation or
a separation between what the rule is and what it ought to be.

The author concludes by noting that while Fuller's point may resonate with some legal
professionals, it does not significantly impact the overall distinction between law as it is and
law as it ought to be. The author argues that in most cases of legal interpretation, the
language of choice, legislation, or fiat better reflects the reality of the situation. Legal
interpretation often involves uncertainties and the need to make choices within the
framework of existing law, rather than a fusion of what is and what ought to be

By exploring the different senses in which law and morality can be related, Hart aims to
demonstrate that legal positivism does not exclude moral considerations from the law. He
emphasizes that legal positivism provides a distinct perspective on the nature of law as a
social phenomenon and acknowledges that moral principles can influence legal rules,
especially in borderline cases.

OXFORD HANDBOOK

This passage discusses the conceptual foundations of positivism, particularly focusing on the
Social Fact Thesis. Positivism is a legal philosophy that emphasizes the social and empirical
aspects of law, as opposed to considering moral or natural law principles. The Social Fact
Thesis asserts that law is essentially a social creation or artifact, and it is the presence of
certain social facts that distinguish legal norms from non-legal norms.

The passage describes two different perspectives within positivism regarding the essential
social fact that explains legal validity. John Austin argues that a legal system is characterized
by the presence of a sovereign who is habitually obeyed by most people in society but does
not habitually obey anyone else. According to Austin, a rule is legally valid if it is the
command of the sovereign and is backed by the threat of a sanction. In this view, the
relevant social fact that explains the existence of law is the presence of a sovereign capable
of imposing sanctions for non-compliance.

On the other hand, H.L.A. Hart disagrees with Austin's version of the Social Fact Thesis. Hart
argues that Austin overlooks the existence of meta-rules, which are rules about the first-
order rules themselves. Hart distinguishes three types of meta-rules: the rule of recognition,
the rule of change, and the rule of adjudication. The rule of recognition specifies certain
features that indicate a rule as a conclusive affirmative indication of being a rule of the
group. The rule of change allows a society to create, remove, and modify valid norms, while
the rule of adjudication provides a mechanism to determine if a valid norm has been
violated.

Hart contends that the presence of a binding rule of recognition, rather than the presence
of a coercive sovereign, is what brings a legal system into existence. According to Hart, a
binding rule of recognition exists when officials in a society accept the criteria of validity
contained in the rule as standards of official conduct, and citizens generally comply with
first-order rules validated by this rule. Therefore, the social fact that gives rise to law,
according to Hart's version of the Social Fact Thesis, is the existence of a rule of recognition
satisfying these conditions.

In summary, the Social Fact Thesis in positivism asserts that law is a social artifact, and its
existence and authority are explained by certain social facts. While Austin emphasizes the
presence of a coercive sovereign as the essential social fact, Hart argues for the importance
of a binding rule of recognition accepted by officials and citizens. Both perspectives aim to
establish that law is a product of human creation rather than being based on moral or
natural law principles.

In this section, the passage explores a modified version of the Social Fact Thesis that
operates at the same level as the Pedigree Thesis within legal positivism. The Pedigree
Thesis states that the rule of recognition provides criteria that validate only norms enacted
in accordance with certain procedural requirements, suggesting that a norm is legally valid
based on its source or pedigree. Austin and Raz are mentioned as proponents of the
Pedigree Thesis.

The passage argues that while this version of the Social Fact Thesis is related to the Pedigree
Thesis, it does not imply it. It suggests that there could be a rule of recognition that validates
not only norms with an appropriate pedigree but also norms derived from those with an
appropriate pedigree. These derived norms would stand in some logical or moral
relationship to the pedigreed norms. In this view, the validity of derived norms depends on
their relationship to norms that are valid based on a social fact. Therefore, the content of
derived norms is immediately dependent on the content of pedigreed norms but ultimately
on the instantiation of relevant social facts by the pedigreed norms.

The passage also discusses the distinction between exclusive and inclusive positivism.
Exclusive positivists accept this version of the Social Fact Thesis, while inclusive positivists
reject it. Inclusive positivists argue that there can be legally valid norms based on their
moral content, regardless of whether they have a logical relationship to norms with an
appropriate pedigree.

It is noted that even inclusive positivists, such as H.L.A. Hart, must accept the presence of
certain institutions in every conceptually possible legal system that allow for the existence
of first-order norms valid partly because of social facts. This means that a legal system
cannot be solely defined by a meta-rule like "all and only moral rules are legally valid."
Hart's theory of law requires the presence of institutional structures such as legislatures and
courts, which enable the creation, modification, and adjudication of law.

Therefore, Hart accepts a modified version of the Social Fact Thesis, where institutions play
a crucial role in explaining the validity of first-order norms. While content-based criteria of
validity can be included in the rule of recognition, it is necessary to have institutional
structures that allow for the existence of norms that are valid based, at least partly, on
social pedigree. This modified version of the Social Fact Thesis is attributed to inclusive
positivism in general.

In this section, the passage introduces the Weak Conventionality Thesis as a supplement to
Hart's version of the Social Fact Thesis. The Weak Conventionality Thesis provides a more
detailed account of the social fact that explains the authority of the validity criteria in a legal
system. According to this thesis, the authority of the validity criteria stems from the fact
that they constitute the terms of a social convention among the individuals who function as
officials within the legal system.
The existence of a social convention depends on a convergence of both behavior and
attitude. Merely converging on behavior alone, such as putting on socks before shoes, does
not constitute a convention unless there is also a shared belief that deviating from that
behavior is a legitimate ground for criticism. Thus, a social convention is constituted by a
convergence of both behavior and attitude, where individuals not only conform to the
behavior but also believe that non-compliance can be criticized.

The Weak Conventionality Thesis explains the existence of law by positing a conventional
rule of recognition that validates norms that are minimally effective in regulating citizen
behavior. According to Hart, such rules of behavior that are valid based on the system's
ultimate criteria of validity must be generally obeyed, and the rules of recognition and rules
of change and adjudication must be accepted as common public standards of official
behavior by the officials within the legal system.

While most positivists, whether exclusive or inclusive, agree that the criteria of validity
derive their authority from a social convention, there is disagreement regarding the nature
of that convention. One view is that the criteria of validity are best characterized as a
coordination convention, where agreeing upon a set of criteria is preferred over having no
agreement. However, this view is challenged by the argument that people are not
indifferent to the content of the validity criteria and have preferences regarding who makes
the law and how it is enacted.

Instead, another perspective characterizes the rule of recognition as a constitutive

convention. Constitutive conventions differ from coordination conventions in that they
create or constitute the point or value of the activity itself. Just as the conventional rules of
chess create or constitute the game of chess, the conventional criteria of validity create or
constitute the social practice of law. This view, put forth by Marmor and supported by
Coleman, suggests that the rule of recognition is not simply a solution to a coordination
problem but rather a constitutive element of the autonomous social practice of law.

Coleman further develops this idea by proposing that the conventional rule of recognition
can be understood as a shared cooperative activity (SCA). An SCA involves participants
attempting to conform their behavior to that of others, being committed to the joint
activity, and supporting the efforts of other participants. It provides a framework for
coordinating behavior and structuring relevant bargaining between participants on how the
joint activity should proceed. Coleman argues that the normative structure of an SCA is
conceptually essential to the social practice constituting a conventional rule of recognition
within the legal system.

In summary, the Weak Conventionality Thesis expands on the Social Fact Thesis by
emphasizing that the authority of the validity criteria in a legal system is based on a social
convention among officials. This convention involves a convergence of behavior and
attitude, and different views exist regarding whether it should be characterized as a
coordination convention or a constitutive convention. Coleman proposes that the
conventional rule of recognition is best understood as a shared cooperative activity that
facilitates coordination and supports the joint activity of law.
In this section, the focus is on the Strong Conventionality Thesis, which states that the
conventional rule of recognition imposes a legal duty on officials to conform to its criteria of
validity. According to this thesis, officials are obligated to apply the requirements of the rule
of recognition in carrying out their official functions, and this obligation arises autonomously
from the rule of recognition itself.

However, not all legal positivists agree with the Strong Conventionality Thesis. Raz and
Marmor, for example, reject this view. Raz argues that when determining the existence of a
law in a legal system, one must ultimately refer to a jurisprudential criterion rather than a
law itself. He believes that the criteria of validity are not part of the law and do not impose
duties on officials. Similarly, Marmor asserts that the rules of recognition, by themselves, do
not provide anyone with an obligation to engage in the legal practice. He argues that a social
convention alone cannot give rise to an obligation and that the question of whether officials
should respect the rules of recognition is a moral issue that cannot be resolved by the
existence of a social practice.

The discussion also touches upon Hart's critique of Austin's account of legal obligation. Hart
argues that the institutional application of coercive force by a legal system cannot create an
obligation in the same way that the threat of a gunman cannot obligate compliance.
However, Hart's analysis seems to face difficulties in explaining how a rule of recognition
can generate autonomous obligations. Coleman's analysis of the rule of recognition as a
shared cooperative activity (SCA) provides some insights into this matter. An SCA involves
participants who conform their behavior to that of others, are committed to the joint
activity, and support each other's efforts within that activity. By considering the normative
structure of an SCA, it becomes possible to understand how social practices can give rise to
obligations.

Coleman argues that the commitment of officials to the goal of making possible the
existence of a durable legal practice, as exemplified by judges' responsiveness to each other,
can explain their obligations. Joint commitments, which induce reliance and justified
expectations, can generate obligations. Thus, if every rule of recognition has the structure of
an SCA, it follows that every rule of recognition imposes an institutional obligation on
officials.

However, this analysis only addresses the obligations of officials within the legal system. It
does not provide a full defense against Hart's critique of Austin regarding the obligation of
citizens to comply with the laws. Merely committing to legal activity does not create an
obligation on the part of citizens to abide by the laws made by officials. A minimal legal
system with no commitment from citizens to uphold the legal system cannot impose an
obligation on citizens to obey its laws. Therefore, even with the notion of an SCA, such a
legal system remains coercive in the same sense as Austin's legal system

The Separability Thesis is another key component of legal positivism. It states that law and
morality are conceptually distinct from each other. The thesis can be understood in different
ways, depending on the specific interpretation.
One interpretation, proposed by Klaus Füßer, considers the Separability Thesis as a meta-
level claim. According to this interpretation, the definition of law should be completely
independent of moral notions. In other words, any reference to moral considerations in
defining law, legal validity, or legal system would be inconsistent with the Separability
Thesis. This interpretation emphasizes the complete separation between law and morality
at a conceptual level.

However, the more common interpretation of the Separability Thesis focuses on its object-
level claim, which pertains to the existence conditions for legal validity. According to this
interpretation, it is not a necessary truth that the criteria for determining the validity of a
legal norm include moral principles. In other words, the object-level interpretation asserts
that it is conceptually possible for a legal system to exist in which the validity of a norm is
not dependent on its moral merits. Instead, the criteria for validity in such a system would
be exclusively based on its sources or pedigree—such as whether the norm was properly
enacted by a legislative body or conforms to established legal procedures.

The Separability Thesis, in its object-level interpretation, does not deny that laws can have
moral content or that moral considerations can influence legal systems. It simply claims that
the existence and validity of a legal norm can be determined independently of moral
evaluations. According to this view, legal validity is a distinct concept that is not necessarily
tied to moral judgments or ethical principles.

It is important to note that the Separability Thesis does not assert that law and morality are
always separate in practice or that they never interact. Rather, it posits that, at a conceptual
level, law and morality can be conceptually distinguished from each other. In specific legal
systems, there can be varying degrees of overlap or interaction between legal and moral
principles, but this does not negate the conceptual distinction between them as posited by
legal positivism.

Key Concepts

1. Positivism as a legal philosophy emphasizing social and empirical aspects of law,

excluding moral or natural law principles.
2. The Social Fact Thesis in positivism, which asserts that law is a social creation
distinguished by certain social facts.
3. John Austin's perspective on the Social Fact Thesis, emphasizing the presence of a
coercive sovereign as the essential social fact for legal validity.
4. H.L.A. Hart's disagreement with Austin's view and the introduction of meta-rules,
particularly the rule of recognition, rule of change, and rule of adjudication.
5. Hart's argument that a binding rule of recognition, accepted by officials and citizens,
gives rise to law, contrasting with Austin's focus on a sovereign.
6. The Pedigree Thesis in legal positivism, stating that the rule of recognition validates
norms based on procedural requirements.
7. A modified version of the Social Fact Thesis, operating at the same level as the
Pedigree Thesis, suggesting norms derived from those with an appropriate pedigree
can also be valid.
 8. The distinction between exclusive and inclusive positivism, with the former accepting
the modified Social Fact Thesis and the latter rejecting it.
9. Hart's inclusive positivism, which requires the presence of institutional structures like
legislatures and courts for the creation, modification, and adjudication of law.
10. The introduction of the Weak Conventionality Thesis, explaining the authority of the
validity criteria in a legal system through a social convention among officials.
11. Different views on whether the convention should be characterized as a
coordination convention or a constitutive convention.
12. Coleman's proposal of the conventional rule of recognition as a shared cooperative
activity, facilitating coordination and supporting the joint activity of law.
13. The Strong Conventionality Thesis, asserting that the conventional rule of
recognition imposes a legal duty on officials to conform to its criteria of validity.
14. Disagreements among legal positivists regarding the Strong Conventionality Thesis,
with some rejecting the idea of obligations imposed by the rule of recognition.
15. The Separability Thesis as a key component of legal positivism, asserting the
conceptual distinction between law and morality.
16. Different interpretations of the Separability Thesis, including the meta-level claim
and the object-level claim.
17. The object-level interpretation emphasizing that legal validity can be determined
independently of moral evaluations, based solely on sources or pedigree.
18. The recognition that law and morality can interact in practice, but the Separability
Thesis maintains their conceptual distinction.

The passage discusses the foundations of positivism, focusing on the Social Fact Thesis,
which asserts that law is a social creation. It explores the perspectives of John Austin and
H.L.A. Hart on the essential social fact that explains legal validity. Austin emphasizes the
presence of a sovereign who commands and sanctions, while Hart argues for a binding rule
of recognition accepted by officials and citizens. The passage also introduces a modified
version of the Social Fact Thesis that operates at the same level as the Pedigree Thesis,
stating that derived norms can be valid based on their relationship to norms with an
appropriate pedigree.
The Weak Conventionality Thesis expands on the Social Fact Thesis by emphasizing that the
authority of the validity criteria in a legal system is based on a social convention among
officials. It discusses differing views on whether the convention should be characterized as a
coordination or constitutive convention. Coleman proposes that the conventional rule of
recognition is best understood as a shared cooperative activity that facilitates coordination
and supports the joint activity of law.
The Strong Conventionality Thesis states that the conventional rule of recognition imposes a
legal duty on officials to conform to its criteria of validity. However, not all positivists agree
with this thesis, and there are debates about the obligations imposed by the rule of
recognition.
The Separability Thesis asserts that law and morality are conceptually distinct from each
other. It can be understood as a complete separation between law and morality at a
conceptual level or as a claim that the criteria for legal validity can be determined
independently of moral considerations.
Overall, the passage provides an overview of the Social Fact Thesis, different versions of it,
the Weak and Strong Conventionality Theses, and the Separability Thesis within legal
positivism.

Positivists: A modern legal system can be based on norms and modes of recognizing validity
that do not resort on moral arguments
What is moral is not automatically legal.

When the law is the law and ought not to be obeyed. When it was immoral it can not be
obeyed but it was enacted. Something can be law and can be disobeyed ..the validity doe
not depend on morality.

Hart is only concerned with the period where adjudication is happening. The utilitarian have
established if you do not separate the law and morality then you will be confused b/w the
both and mixing up law and morality.