The theory of knowledge attempts to clarify the nature of knowledge, the philosophy of logic

examines the definition of logic, moral philosophy reflects on the nature and boundaries of morality
and so on. Since the identity of such disciplines depends on the identity of their subject matter,
preoccupation with their own self-identity is typical of many philosophical inquiries. Philosophy of
law is no exception. It too is partly engaged in an investigation of the nature of law and of the
boundary of the legal and thus it is perennially reflecting upon its own nature. ...166
In this article I shall describe and comment upon three current approaches to the question of the
nature of law. To explain them and justify my comments I shall have to venture some remarks
towards a theory concerning the nature of law but these will be,
1–027

in the context of the present article, both incomplete and incidental to the main task of clarifying the
problem about the nature of law.
1. The Linguistic Approach
Both among the classical exponents of legal philosophy167 and among its modern practitioners168
one finds philosophers who took the enquiry concerning the nature of law to be an attempt to define
the meaning of the word “law”. The linguistic approach was boosted by the anti-essentialist spirit of
much of modern analytical philosophy and in particular by its tendency in its early years to regard all
philosophical questions as linguistic questions.
Recently philosophers have grown dissatisfied with the linguistic approach, and I introduce it first
only to dismiss it by surveying some of the flaws and defects associated with it. The first and most
common response to the linguistic approach is that philosophers are not lexicographers. This, though
true, is obviously incomplete. What then are philosophers of law after? The answer will be found in
our examination of the other two approaches to be discussed below. Yet even while allowing that the
final verdict on the linguistic approach must await the emergence of a viable alternative we can
examine the internal weakness of the linguistic approach itself.
Traditionally those who adopted the linguistic approach concentrated on the word “law”. They
encountered the overwhelming problem that that word is used in a multiplicity of non-legal contexts.
We have laws of nature and scientific laws, laws of God and of thought, of logic and of language, etc.
Clearly the explanation of “law” has to account for its use in all these contexts and equally clearly any
explanation which is so wide and general can be of very little use to legal philosophers.
Only on one assumption can the explanation of “law” hope to provide the answer to the legal
philosopher’s inquiry into the nature of law. That assumption is that the use of “law” in all its
contexts but one is analogical or metaphorical or in some other way parasitical on its core meaning
as displayed in its use in one

type of context and that that core meaning is the one the legal philosopher has at the centre of his
enquiry. Unfortunately, the assumption is mistaken, Its implausibility is best seen by examining the
most thorough and systemic attempt to provide an analysis of “law” based on this assumption, that
proposed by John Austin in The Province of Jurisprudence Determined. For the failure of Austin’s
analysis does not depend on his espousal of a general command model of law. Quite independently
of the shortcomings of the command theory Austin was doubly wrong. First, there is no reason to
regard discourse about purely theoretical laws, like laws of nature, as parasitical extensions of
discourse about purely practical laws, such as legal rules. Secondly, when considering purely practical
laws there seems no reason to give legal rules and their special features preferred status compared
with that of, e.g. moral laws.
The fate of the linguistic approach is not yet sealed. The explanation of the meaning of the word
“law” has little to do with legal philosophy,169 but it is possible that the meaning of some other
terms is closely associated with the concerns of legal philosophers. The most promising candidates
are “legal” and “legally”. They are not used in theoretical contexts and in practical contexts seem to
be excluded from moral and all other usages apart from those which directly concern legal
philosophy.
“Legally” is, inter alia, a sentence-forming operator on sentences. The claim that its semantics
explains the nature of law amounts to saying that “legally p” is the general form of all legal
statements. To examine the claim one should consider the five types of sentences standardly used to
make legal statements.
First, some other legal operators such as “It is the law that ...” and “According to law ...” are roughly
synonymous with “Legally. ...”170 The main other legal operator “There is a law that ...” though not
synon[y]mous with “legally ...” can be explained by its use. “There is a law that p” is logically
equivalent to “Legally, there is a rule that p.”
Second, “legal” can be defined in terms of “legally.” “x has a legal duty” (or “a legal right” or “legal
authority,” etc.), is logically equivalent to “Legally, x has a duty” (or “a right” or

“authority,” etc.). Similarly “This is a legal transaction” is logically equivalent to “Legally this is a
transaction,” and so on.
Third, purely legal predicates are predicates such as “a mortgage,” “a share,” “a copyright,” “fee
simple” which, we intuitively judge, are used only to make legal statements. Any sentence containing
a purely legal predicate should, therefore, count as a legal sentence even though it does not display
the form “Legally p.” However any sentence “p” containing a purely legal predicate is logically
equivalent to “legally p.” For example, “he has the copyright” is logically equivalent to “legally he has
the copyright.”
Fourth, semi-legal predicates are predicates which are normally used to make legal statements but
which can also be used in other contexts. “Ownership,” “marriage,” “contract” are semi-legal. “They
make a contract,” “They are married,” “He owns the house,” “The house is his” are normally used to
make what we intuitively judge to be legal statements. But my son is right in saying that his books are
his, even if in law they are mine, and Marian Evans could quite sensibly regard herself as G. H. Lewes’
wife, not merely consider that she deserves to be. In contrast, if it is not the case that according to
law one has the copyright then it is not true that one has the copyright, however much one deserves
to have it. Given these facts about semi-legal predicates it is clear that the condition specified above
respecting legal predicates does not apply to them. Sentences containing semi-legal predicates are
not logically equivalent to the sentences resulting from them by prefixing “legally” to them.
At the same time it is true that any legal statement made by the use of a sentence “p” containing a
semi-legal predicate is logically equivalent to the statement standardly made by the use of “Legally
p.”
Fifth, legal statements are often made by the use of ordinary deontic sentences where the content of
the sentence and the context of its utterance indicate that it is used to make a legal statement (e.g.
“It is prohibited to park here”). Here again all one can say is that when such a deontic sentence “p” is
used to make a legal statement the statement thus made is logically equivalent

to the one standardly made by “Legally p.”

Consideration of the first three points may suggest that all sentences standardly used to make legal
statements are, or are logically equivalent to, sentences of the form “Legally p.” The fourth and fifth
points, however, disprove any such suggestion. It is true that all the foregoing observations strongly
suggest that all legal statements can be expressed by sentences having the form “legally p”, yet this
judgment is based on an intuitive notion of “legal statement” which is not itself explained by
reference to “legally.” One may therefore conclude that any theory of the nature of law must observe
the Linguistic Condition.
LC: All legal statements are statable by the use of sentences of the form “Legally p.”
But one must at the same time reject the claim that the theory of the nature of law is simply an
investigation of the meaning of “legally.”
This claim is also defeated by an independent argument. The argument above shows that not all the
sentences frequently used to make what we intuitively judge to be legal statements can be analysed
in terms of “legally.” It can also be shown that not all the statements standardly made by the used of
sentences of the form “Legally p” are intuitively judged to be legal statements in the sense relevant
to legal philosophy. “Legally p”-sentences can be used to make statements of religious law or of
international law or indeed of the law of some other kinds of powerful social associations but the
credentials of such statements as legal statements in the relevant sense (whatever that may be) is
not a question which philosophers will allow to be settled by the appropriateness of the use of
“legally” in such cases. To say this is essentially no more than to reassert that philosophy is not
lexicography.
2. The Lawyers’ Perspective
The upshot of the discussion so far is that linguistic considerations impose a constraint on the
acceptability of legal

theories but that the inquiry into the nature of law is not a study of the meaning of any term or
family of terms. What then is the object of such an inquiry? Many legal philosophers start from an
unstated basic intuition:
BI: The law has to do with those considerations which it is appropriate for courts to rely upon in
justifying their decisions.
I have left the formulation vague because it is meant to capture a common basic intuition. Many legal
philosophers accepting the basic intuition as an unconscious starting point regard their task as
refining it to yield a philosophical theory of the nature of law which is in fact an elaboration of the
basic intuition.
It may be thought, and the thought may have influenced various philosophers, that the basic
intuition is justified by the linguistic approach (or perhaps even by LC). It may be thought, in other
words, that “legal rules” and “legal facts” mean the same as “the considerations that it is appropriate
for courts to rely upon.” But this cannot be accepted on the strength of linguistic usage. The case of
constitutional conventions in English Law provides a good counter-example.171 In England
constitutional conventions constitute a major part of the English constitution regulating as they do
the relations between the organs of government. An example is the convention that the monarch is
not entitled to refuse royal assent to a bill properly passed by Parliament. According to most
standard theories of English constitutional law one defining feature of conventions is that they are
not considerations on which courts can base decisions. If this is so then according to the basic
intuition they are not legal rules. This indeed was Dicey’s view and it is shared by many other legal
theorists. But this conclusion cannot be supported by linguistic usage, since many native English
speakers would not hesitate to dub various conventions “legal rules.” Having rejected the linguistic
approach above, it will be clear that I am not presenting the case of constitutional convention as a
refutation of the basic intuition, but merely as a refutation of the suggestion that it is necessitated by
the linguistic approach. In fact it is at odds with facts about

linguistic usage and although it is compatible with LC it is by no means justified or required by it.
I shall assume, and will say a little below to justify the assumption, that BI is true. This still leaves
unexplained the question why it should have been taken by so many as an unexamined assumption
which serves, most unconsciously, to define their own subject and thus gives shape to their theories.
If I am right in suggesting that many tended to regard BI as justified by linguistic usage this provides a
partial explanation for the willingness to adopt BI without further questioning. But since this belief is
so evidently ill-founded there must be additional reasons, if only to explain why legal philosophers
were so myopic in their perception of linguistic usage. The explanation is simple. Most theorists tend
to be by education and profession lawyers and their audience often consists primarily of law
students. Quite naturally and imperceptibly they adopted the lawyers’ perspective on the law.
Lawyers’ activities are dominated by litigation in court, actual or potential. They not only conduct
litigation in the courts. They draft documents, conclude legal transactions, advise clients, etc., always
with an eye to the likely outcome of possible litigation in which the validity of the document or
transaction or the legality of the client’s action may be called into question. From the lawyer’s point
of view the law does indeed consist of nothing but considerations appropriate for courts to rely
upon.172
The lawyer’s perspective consists of the unquestioning acceptance of BI as the starting point for legal
philosophy and as determining its subject matter. But perhaps BI need not be accepted
unquestioningly. Perhaps it can be justified by more fundamental assumptions. Therefore, accepting
BI does not commit one to accepting the lawyer’s perspective.
Kelsen can be taken as an instructive example of a philosopher who adopts the lawyer’s perspective
without being aware of this. That if he did so he was unaware of this would probably be generally
conceded. Indeed most of Kelsen’s interpreters either did not notice or underplayed the point. This is
quite natural. Kelsen himself says he is following a combination

of the linguistic approach and the institutional approach: “Any attempt to define a concept must take
for its starting point the common usage of the word denoting the concept in question. In defining the
concept of law we must begin by examining the following questions: Do the social phenomena
generally called law present a common characteristic distinguishing them from other social
phenomena of a similar kind? And is this characteristic of such importance ... that it may be made
the basis of a concept serviceable for the cognition of social life?”173 But in fact Kelsen is merely
paying lip-service to what he regards as a proper methodological procedure. He never seriously
examined any linguistic evidence and he assumed dogmatically and in the face of all the glaring
evidence to the contrary, that law is the only social institution using sanctions (other than divine
sanctions).174
The clue to the methodological approach he was in fact pursuing is in his insistence that legal theory
must be a pure theory. He regarded it as doubly pure. It is pure of all moral argument and it is pure of
all sociological facts. We shall return to the purity from morality below. For the time being let us
concentrate on purity from social facts. By this Kelsen indicates his belief that the analysis of legal
concepts and the determination of the content of any legal system depends in no way at all on the
effects the law has on the society or the economy, nor does it involve examination of people’s
motivation in obeying the law or in breaking it. The picture of law dictated by the methodology of
the Pure Theory is of law in the books, of an analysis of law using as the raw material only law
reports and statute books. Now the only possible justification for legal studies to ignore the social
realities behind the law is a conception of law and legal studies which concentrates on the lawyers’
perspective.
On the assumption that Kelsen embraces the lawyers’ perspective it is easier to understand why
Kelsen was tempted by two of his best known doctrines. If the law consists of considerations
appropriate for courts to rely upon then it is tempting to regard all laws as addressed to courts.
Furthermore,

if one thinks of every law as determining the result of a (class of) potential disputes then it is
tempting to regard every law as stipulating a remedy (Kelsen says that every law stipulates a sanction
but his notion of a sanction is wide enough to cover all remedies excepting declaratory judgments).
After all every litigation is about the applicability or non-applicability of certain remedies. I am not
suggesting that these doctrines are plausible nor that they are necessitated by the lawyers’
perspective, merely that they are made comprehensible on the assumption that Kelsen endorsed this
perspective.
The basic intuition says that law has to do with reasons for courts’ decisions. It does not say that all
the considerations that courts may rely upon are legal considerations. Nor does it reject such a view.
Kelsen himself however rejected it. He regarded law as consisting of enacted law, case law and
customary law and he acknowledged that there are other considerations on which courts may rely.
These are extra-legal considerations. So far as the law is concerned the courts are left with discretion
when the law runs out and other considerations come into play. Kelsen’s reasons for such a position
have nothing to do with BI. They derive from the other aspect of the purity of legal theory: its purity
from moral considerations.
For Kelsen it is self-evident that legal theory is free of all moral considerations. Given his essentially
emotivist theory of ethics this is a prerequisite for legal theory to be “scientific.” But this argument,
quite apart from its dependence on a particular view of the nature of morality, is clearly
misconceived. The task of legal theory is clearly to study law. If law is such that it cannot be studied
scientifically then surely the conclusion must be that legal theory is not “a science.” One can even
accept the conclusion that if the law does involve moral considerations and therefore cannot be
studied scientifically, then legal theory will study only those aspects of the law which can be studied
scientifically. What one cannot conclude is that since only morally neutral considerations can be
studied scientifically therefore the law is such that its study does not involve moral considerations.

Since Kelsen has no good reason to insist that legal theory should be free from moral considerations,
he has no good reason to delimit the law in the way he does. He is aware that courts do rely on
moral considerations. He regards enacted law, case law and customary law as exhausting the content
of the law even though he is aware that courts quite appropriately rely on moral considerations not
incorporated in legislation, custom or precedent. I remarked above that BI does not require that such
considerations shall be taken as law. But since BI postulates that at least some of the considerations
appropriate for courts are legal, it imposes a burden on anyone who claims that some such
considerations are not legal to explain what difference between them and legal considerations makes
them non-legal and why. Kelsen has no such explanation. The logic of his own doctrines can be used
against him: if enacted and case law can be represented as instructions for courts to apply sanctions
in certain circumstances so can those moral considerations which it is appropriate for courts to rely
upon. If all the considerations which guide courts in applying sanctions are legal considerations, why
are not moral considerations which do so part of the law even if they are not incorporated in
legislation, precedent or custom?
Legal theory in America has always been dominated by the thought that law is just what the courts
do. American theorists not only embraced the lawyers’ perspective but jumped to the conclusion
that all the considerations which courts may use are legal. The most sophisticated and accomplished
representative of this tradition is R. M. Dworkin who in a series of articles [...] developed a theory of
law out of a theory of adjudication.175 In fact he developed a theory of adjudication and regards it
willy nilly and without further argument as a theory of law. Dworkin points out that judges must use
moral considerations in addition to enacted and case law. He argues that the moral considerations
which they should use are those which belong to a moral theory justifying the enacted and case law
binding on them i.e. that moral theory which constitutes the ideology of the law.176 One may agree
or disagree with this theory of adjudication. Either way one has to ask a separate question, namely,
which of all

these considerations constitute the law? Dworkin, however, does not pause to ask this question. He
unquestionably assumes, without even stating the assumption or providing any reason for it, that all
the considerations which courts legitimately use are legal considerations.
Dworkin’s identification of a theory of adjudication with a theory of law looks, however, very natural
from the lawyer’s perspective. Lawyers’ activities, as we saw, revolve, directly or indirectly, round
litigation in the courts. From the lawyer’s perspective all the considerations pertaining to judicial
reasoning are equally relevant. A lawyer has to concern himself not only with legislation and
precedent but also with other considerations relevant to judicial reasoning. A lawyer, therefore,
fortified in virtue of BI with the knowledge that the law has to do with judicial reasoning finds no
reason from the perspective of his own professional preoccupations to stop short of identifying the
theory of law with a theory of adjudication.
3. The Institutional Approach
I have suggested that from the lawyer’s perspective in the disagreement between Kelsen and
Dworkin the latter must be declared winner. But we have also seen that neither the basic intuition BI
nor the linguistic constraint LC contributes to this verdict. They are compatible with both Kelsen’s and
Dworkin’s theories of law.177 It is the lawyer’s perspective which delivers the verdict. Yet there is
something inherently implausible in adopting the lawyer’s perspective as one’s fundamental
methodological stance. There is no doubting the importance of the legal profession and of the
judicial system in society. It is entirely appropriate to make them the object of a separate study and
to regard legal theory as that study. It is, however, unreasonable to study such institutions exclusively
from the lawyers’ perspective. Their importance in society results from their interaction with other
social institutions and their centrality in the wider context of society. The law is of interest to
students of society generally, and legal philosophy, especially when it inquires into the nature of law,
must stand back from the lawyer’s perspective, not in order to disregard it, but in order to

examine lawyers and courts in their location in the wider perspective of social organization and
political institutions generally.
The institutional approach has had many representatives in the history of legal philosophy. Its
influence on English legal philosophy is due principally to the influence of John Austin (who
combined it with the linguistic approach). He, following Bentham, first explains the nature of the
political system and then proceeds to explain the nature of law by placing it within the political
system. H.L.A. Hart is a prominent practitioner of this approach.178 In his discussion of the
emergence of secondary rules and of the minimum content of natural law, as well as in his discussion
of the separateness of states, he examines the law as involving the emergence of new kinds of
political institutions, both legislative and judicial, against the context of social and political needs.179
The institutional approach, subjected to the restriction of LC, seems much superior to its two rivals.
The linguistic approach though useful as imposing restrictions and suggesting insights is bound to
yield inconclusive results. The lawyer’s perspective though based on a sound intuition is arbitrary as
an ultimate starting point.
The institutional approach strives to present an analysis of a central political institution which, since
its analysis conforms to LC, should be accepted as the analysis of law. From its point of view BI is a
justifiable consequence and the disagreement indicated above between Kelsen and Dworkin is
resolved in favour of Kelsen. In order to illustrate this last point I shall deviate from the purely
methodological reflections of these pages to indicate in broad outline some of the features of the
theory based on the institutional approach, features relevant to the issue between Kelsen and
Dworkin.180
From the institutional point of view the basic intuition is the starting point for further critical
reflection. It is entirely plausible to regard the notion of law as bound up with that of a judicial
system but what are the essential characteristics of a court and why are they important to the
political organization of society?

Three features characterize courts of law:

1) They deal with disputes with the aim of resolving them.
2) They issue authoritative rulings which decide these disputes.
3) In their activities they are bound to be guided, at least partly, by positivist authoritative
considerations.
The first point does not imply that courts of law do not engage in other activities than settling
disputes. They often administer estates and bankruptcies, conduct the affairs of certain categories of
people, etc. The first point simply asserts that however many other activities law-courts engage in
they are courts because, among other things, they strive to settle disputes. This point when
juxtaposed with BI, can be read as saying that it is as courts, i.e. as settling disputes, that they are
crucial to our understanding of law. But I am not at all confident that this is so. It seems more
plausible that what is crucial for the existence of law are the other two features of law courts
(features which can be and in many legal systems are shared by other, though perhaps less
important, institutions). However, I shall not argue this point here.
The second limb of the above definition of a court of law, i.e. that it issues authoritative rulings, may
seem self-evident. A few words of explanation concerning the sense of “authoritative” rulings may
nevertheless be called for. First, let me make clear that both here and below I am using
“authoritative” as short for “claimed to be authoritative,” i.e. by the court or person concerned or
the organization to which they belong or which they represent. There is no suggestion that the claim
is morally warranted. A court’s opinion on the merits of a dispute is authoritative and binding in a
way in which my opinion is not, not because I have opinion on such disputes (which I sometimes
have), not because my opinion is not an expert’s opinion (which it may be), nor again because courts
never err (they sometimes do). The reason is that the court’s very utterance of its opinion is claimed
by it to be a reason for following it whereas my utterance of my opinion is not claimed to be a reason
for

following it. At best it amounts to informing the persons concerned of the existence of reasons which
are themselves quite independent of my utterance.
The need for the third limb of the definition, that courts of law be, at least partly, guided by
authoritative positivist considerations, is clearly seen by contemplating its negation. There are forms
of arbitration in which the arbitrator is instructed merely to judge the merits of the case and to issue
a just judgment, without being bound to follow any authoritative positivist standard. We can imagine
a purely moral adjudication taking the same form. Positivist considerations are those the existence
and content of which can be ascertained without resort to moral argument.181 Statutes and
precedents are positivist considerations whereas the moral principles of justice are not. A moral
adjudicator will rely in his deliberation on the existence of positivistic standards but he is not bound
to regard them as authoritative. But one does not have a court of law unless it is bound to take as
authoritative some positivist standards such as custom, legislation or precedent.
So much we can learn from our intuitive understanding of the nature of courts of law as a political
institution. How can we use this understanding as a base on which to anchor a complete doctrine of
the nature of law? The clue is in the emergence of authoritative positivist considerations as crucial to
our conception of courts of law which, in accordance with BI, provide the institutional key to the
nature of law. We can formulate an additional constraint on an adequate doctrine of the nature of
law.
AP: Law consists only of authoritative positivist considerations.
An analogy with personal action will help to explain the point. It is possible to distinguish between a
deliberative and an executive stage in a person’s attitude to the prospect of a certain action. The
deliberative stage in which the person considers the merits of alternative courses of action
terminates when he reaches a conclusion as to what he should do. It is followed by an executive
stage if and when he forms an intention to perform

a certain act. In the executive stage he is set to act if and when the occasion arrives. When an
intention is formed deliberation will terminate, though it may be restarted and the intention
suspended or even revoked. Sometimes the intention will harden into a decision, indicating
reluctance to re-open deliberation. In any case the existence of an intention indicates that the
question what to do has been settled and that the person is ready to act.
Not every action is preceded by both stages or by one of them. Sometimes one just acts without
prior deliberation or intention. Sometimes one or the other stage exists without the other, and very
often when both exist the boundaries between them are extremely fuzzy. Yet the general distinction
is of great importance since just as the deliberative stage is necessary for people to be able to form
considered views on the merits of alternative courses of action, so the executive stage is necessary to
enable people to plan ahead, to determine themselves to act in advance of the occasion for the
action. For large organizations a distinction between deliberative and executive stages is essential to
secure planned and efficient institutional action. In institutions such division often includes a division
of responsibility between different persons. Some will be responsible for deliberating and deciding,
others for executing those decisions. In general, social co-operation either negative (people
refraining from hurting each other) or positive can be viewed as a form of social action decided upon
by some social institutions and carried out by individuals. Some societies allow individuals a share in
deciding on their schemes of co-operative action and other plans. But even they have to distinguish
between the deliberative stage where individuals contribute to the decision-making process and the
executive stage, where perhaps those very same individuals are bound to observe those decisions.
In the deliberative stage the question what is to be done is open to argument based on all sorts of
considerations. Reasons of a moral character will often dominate. Once the matter has been decided
to the satisfaction of the social institution involved, its appropriate organ will formulate “the social
intention,” i.e. it issues an authoritative instruction. Since this instruction

represents the conclusion of the deliberative stage and belongs itself to the executive stage it will be
identifiable without resort to further moral argument. Those belong by definition to the deliberative
stage. Only positivist considerations can belong to the executive stage. Furthermore executive
considerations are authoritatively binding. Those subject to them are not, normally, allowed, by the
social institution concerned, to challenge or query their validity or conclusiveness. To do so is to
reopen the deliberative process and unless there are limitations on the freedom with which this can
be done the considerations cannot be regarded as executive. So long as argument is free the
executive stage has not been reached.
Executive considerations are therefore authoritative positivist considerations. This brings us back to
the definition of courts of law. It included the fact that they are guided in part by authoritative
positivist considerations and that they issue authoritative rulings (which being issued by the action of
members of the court are themselves authoritative positivist rulings). This suggests that the law
consists of the authoritative positivist considerations binding on the courts and belongs essentially to
the executive stage of the political institution (the state, the church, etc.), of which it is a part. The
resulting picture has the courts applying both legal (i.e. authoritative positivist) and non-legal
considerations. They rely both on executive and deliberative reasons, yet the law belongs to the first
kind only.
The two stage picture presented above may make one surprised with a doctrine by which the courts
are guided by considerations belonging to both stages. But the surprise is due merely to the
oversimplification in the representation of the two stages above. Consider again the case of the
individual. A person may stagger the process of decision-making, moving towards the “pure”
executive stage in several separate steps. First, for example, he decides to act on the balance of
economic considerations and to discount considerations of prestige. Then he decides that one of the
half dozen alternatives open to him is to be rejected since at least one of the others is better
supported by economic considerations, etc. The law often proceeds in a

similar way. On many issues statutes represent but the first step towards a “pure” executive stage.
They may have to be supplemented by delegated legislation and perhaps even by further
administrative action. Sometimes litigation reaches the courts in matters which have not reached a
“pure” executive stage in the matter at issue and the courts have to resort to non- legal, i.e. non-
executive considerations to resolve the dispute. Even this picture is oversimplified. It suggests, e.g.
that the survival of a deliberative stage down to the adjudicative level is always to be regretted. This
is far from the truth. It is often advantageous for a person while forming a general intention in
advance (I’ll stay the night in Nottingham) to leave the precise details to the last moment (I’ll choose
an hotel when there). The same kind of reasons suggests that often, especially when dealing with
very broad categories, it is better not to fix too inflexibly the precise details in advance. It is better to
settle for executive reasons, i.e. laws, which fix the framework only and leave the courts room to
apply deliberative reasons within that framework.
Be that as it may, our concern here is not to comment on various law-making policies but on the
nature of law. Our analysis yielded only one element: the law consists of authoritative positivist
considerations enforceable by courts. Clearly not all the considerations which meet this condition are
part of the law. Other conditions have to be added. However, the fact that law consists of
considerations enforceable by courts (as required by BI) which are authoritative and positivist is
suggested by the definition of a legal court and is supported by the common distinction between the
two functions of the courts as law-makers and law-appliers which roughly coincides with the
distinction between cases where the law is unsettled and those where it is not. It is further
supported by the fact that any analysis of law based in part on this feature focuses on a distinction of
paramount importance to social organization, i.e. the distinction between the deliberative and the
executive stages.
4. Is legal philosophy value free?
The analysis outlined above is intended to show how at the level

of highest philosophical abstraction the doctrine of the nature of law can and should be concerned
with explaining law within a wider context of social and political institutions. It shows how the
lawyers’ perspective is an arbitrary starting point for legal philosophy, disregarding the wider political
context in which the law is moored. It also shows how from this point of view the inclination to
identify the theory of law with a theory of adjudication and legal considerations with all those
appropriate for courts is based on a short sighted doctrine overlooking the connection of law with
the distinction between executive and deliberative considerations.
It may be thought that the arguments of the last section support legal positivism against natural law.
But this is not so. It is true that positivists do generally regard legal considerations as authoritative
and positivist.182 But they are not the only ones. The theories of several prominent natural lawyers
conform with all the features contributing to a doctrine of the nature of law mentioned above.183
There still remains the general question about the moral character of the doctrine of the nature of
law. Is it a moral doctrine based on moral considerations or not?
Clearly a theory of adjudication is a moral theory. It concerns all the considerations affecting
reasoning in the courts, both legal and non-legal. In pronouncing which extra-legal considerations
have force and how much weight is due to them it is engaged in moral argument. When the doctrine
of the nature of law is identified with a theory of adjudication it becomes itself a moral theory. The
question what is the law of England is identified with the question which considerations should
courts rely upon. This is clearly a question of political morality, at least inasmuch as it concerns the
content of one or the other of the extra-legal considerations. For example, the question whether an
English court today is entitled to declare a ministerial regulation null and void on the ground that it
violates human rights is clearly a moral and political question. It is a question one may expect an
answer to from a complete theory of adjudication which specifies all the considerations judges
should use and their force. If a theory of adjudication is a theory of law, if all the

considerations to be used by courts are legal considerations, then the theory of the nature of law is a
moral theory.
A different conclusion emerges if one follows the arguments presented above based on the
institutional approach. Since law belongs to the executive stage it can be identified without resort to
moral arguments, which belong by definition to the deliberative stage. The doctrine of the nature of
law yields a test for identifying law the use of which requires no resort to moral or any other
evaluative argument. But it does not follow that one can defend the doctrine of the nature of law
itself without using evaluative (though not necessarily moral) arguments. Its justification is tied to an
evaluative judgment about the relative importance of various features of social organizations and
these reflect our moral and intellectual interest and concerns.