In Law’s Empire,Ronald Dworkin, LAW’S EMPIRE (1986). Hereinafter referred to as LE. Ronald Dworkin distinguishes two kinds of disagreement legal practitioners can have about law. Lawyers can agree on the criteria a rule must satisfy to be legally valid but disagree on whether it satisfies those criteria. For example, two lawyers might agree that a rule is valid if enacted by the state legislature but disagree on whether it was, in fact, enacted by the state legislature. Such disagreement is empirical in nature and poses no difficulties for positivism. There is, however, a second kind of disagreement that Dworkin believes is inconsistent with positivism. Lawyers can agree on the facts about a rule’s creation but disagree on whether those facts are sufficient to endow the rule with legal authority. This sort of disagreement is theoretical in nature as it concerns the grounds of law, which, according to positivism, are exhausted by the rule of recognition.

Inclusive Legal Positivism, as understood throughout this article, consists in the following thesis: It can be the case, though it need not be the case, that a norm’s consistency with some or all of the requirements of morality is a precondition for the norm’s status as a law in this or that jurisdiction. While such a precondition for legal validity is not inherent in the concept of law, it can be imposed as a threshold test under the Rule of Recognition in any particular legal regime. That test, which can be applied by the officials in such a regime to all of the legal norms therein or to only some subset of those norms, is one of the criteria that the officials use for ascertaining the law. Insofar as a criterion of that sort does prevail in any particular legal system, then, some degree of moral worthiness is a necessary condition for the legally authoritative force of each norm that is validated thereunder. Inclusive Legal Positivism, which readily accepts the possibility of such a state of affairs, is inclusive because it allows that moral precepts can figure among the criteria that guide officials’ ascertainment of the law. Inclusivist theorists reject the view that every criterion of law-ascertainment in every possible legal system is focused on nonnormative matters of provenance. At the same time, the Inclusivists are positivists because they also reject the view that every possible legal system includes moral tests among its law-ascertaining criteria. An Inclusive Legal Positivist insists that such tests are contingent features, rather than essential features, of the systems of law wherein they are applied.

There are those who believe that the rules governing the international political system are changing fundamentally; a new universal constitutional order is in the making, with profound implications for the constituent units, competencies, structure, and standing of the international legal order (cf. Cassese 1986, 1991; Weller 1997). On the other side, there are those who are profoundly skeptical of any such transformation; they hold that states remain the leading source of all international rules—the limiting factor that ensures that international relations are shaped, and remain anchored to, the politics of the sovereign state (cf. Smith 1987; Holsti 1988; Buzan, Little, and Jones 1993). “In all times,” as Hobbes put it, political powers are “in continual jealousies, and in the state and postures of Gladiators” (1968, 187–8). Despite new legal initiatives, such as the human rights regime, “power politics” remain the bedrock of international relations; plus ça change, plus c’est la même chose.

INTRODUCTION

A says to B: “Unless you x, I will y.” Or, equivalently, “I will –y if and only if you x.” Is this proposal coercive? If B performs x has he been coerced? Is this an instance of coercion? Moral and political philosophers, as well as legal theorists, have struggled with these questions at least since Aristotle but have been tackling them with renewed vigor since Robert Nozick’s seminal 1969 article.Robert Nozick, Coercion, in PHILOSOPHY, SCIENCE AND METHOD 440 (Sidney Morgenbesser et al., ed. 1969). And, happily, scholarly efforts over the past few decades have substantially advanced our understanding.The most comprehensive account, which explores coercion from both legal and philosophical perspectives, is Alan Wertheimer, COERCION (1987). Other particularly valuable contributions to a substantial literature include Joel Feinberg, HARM TO SELF 189–268 (1986); Harry G. Frankfurt, Coercion and Moral Responsibility, in ESSAYS ON FREEDOM OF ACTION 63 (Ted Honderich ed. 1973); Vinit Haksar, Coercive Proposals, 4 POL. THEORY 65 (1976); Daniel Lyons, Welcome Threats and Coercive Offers, 50 PHIL. 425 (1975); Peter Westen, “Freedom” and “Coercion”—Virtue Words and Vice Words, 1985 DUKE L.J. 541; and David Zimmerman, Coercive Wage Offers, 10 PHIL. & PUB. AFFAIRS 121 (1981). Most significantly, in my view, they have made increasingly clear (despite a few remaining dissenters) that answers to these coercion questions are thoroughly moralized in the sense that the questions cannot be resolved by reference solely to nonmoral facts. But if the answers themselves are moralized, so too, of course, are the questions. That is, coercion claims arise, and stake a claim to our attention, in order to serve some sort—or sorts—of normative needs.

In the posthumously published Postscript to The Concept of Law, H.L.A. Hart claimed that the account he advanced in that book was meant to be “both general and descriptive.”H.L.A. Hart, THE CONCEPT OF LAW 239 (2nd ed. with Postscript; Penelope A. Bulloch and Joseph Raz, eds., 1994). Hereinafter “Hart.” The meaning, possibility, and desirability of such an account of legal institutions form the subject of much recent interpretative and critical debate.See, e.g., Stephen Guest, Two Strands in Hart’s Concept of Law: A Comment on the Postscript to Hart’s The Concept of Law, in POSITIVISM TODAY 29-44 (Stephen Guest, ed., 1996); Michael Moore, Hart’s Concluding Scientific Postscript, 4 LEGAL THEORY 301-327 (1998); Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, 4 LEGAL THEORY 249–282 (1998). Prominent among the disputants is Professor Stephen Perry, who, in several recent articles, offers both an interpretation of Hart’s distinctive methodological aims and a critical argument that counsels their rejection.Stephen Perry, Hart’s Methodological Positivism, 4 LEGAL THEORY 427–467 (1998) (hereinafter “HMP”); The Varieties of Legal Positivism, 9 CAN. J. L. & JURIS. 361–381 (1996) (hereinafter “VLP”); Interpretation and Methodology in Legal Theory, in LAW AND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY 97, 118 (Andrei Marmor ed., 1995) (hereinafter “IMLT”). Perry’s interpretation is worth examining, not only for his claims about Hart, but also for his more general claims and assumptions about what a descriptive theory of law would be expected to look like and what it could hope to accomplish.

On November 27, 1905, the steamship Reynolds was moored to Vincent’s dock for the purposes of unloading its cargo, when a violent storm arose. The captain signalled for a tug to tow the ship from the dock after the cargo had been unloaded, but none could be obtained, because the waters had become too rough. It was too dangerous to cast off, and as the lines holding the ship to the dock became frayed, the crew replaced them. The Reynolds was repeatedly thrown against the dock, causing considerable damage to it. The ship’s owner, the Lake Erie Transportation Company, was held liable for the cost of the damage. Defendant’s appeal against an order denying a new trial was dismissed by a two to one majority of the Supreme Court of Minnesota in an opinion that has since enjoyed considerable and consistent attention.Vincent v. Lake Erie Transportation Co., 124 N.W. 221 (Minn. Sup. Ct. 1910).

It is a commonplace that coercion forms part of the nature of law: Law is inherently coercive. But how well founded is this claim, and what would it mean for coercion to be part of the “nature” of law? This article suggests that the claim is grounded in our current conception of law. The main focus of the article, however, is upon two major lines of argument that attempt to establish a link between law and coercion: one based upon the law’s efficacy; the other upon the law’s normativity. It argues that the claim that law is necessarily coercive because it must be efficacious is mistaken—not necessarily on sociological or psychological grounds, but because it identifies law with the preconditions for its existence. On the other hand, the argument that law’s normativity is inherently linked to coercion contains an important truth—not because coercion is necessary to account for normativity, but because the scope of law’s claim to authority encompasses the right to authorize the use of coercion.

INTRODUCTION

It’s apples and oranges, we say. Chalk and cheese.Apples and oranges is the North American term, implying incommensurability. Chalk and cheese is the British term, implying both incommensurability and incompatibility. Or, somewhat more equivocally, six of one and half a dozen of the other.This may imply either the equality of the options before us (if emphasis is placed on the identity of six and half a dozen) or the incommensurability of options that are insignificant in our lives (if emphasis is placed on the difference between one option and the other). What do we mean?

I. INTRODUCTION

Rawls’s fundamental conception of fairness, that “the arbitrariness of the world must be corrected for” (141/122),A Theory of Justice (1971) has been issued in a revised edition (1999a). The new edition involves no significant changes of substance in the topics I address. I cite to the relevant page in both editions, but to avoid cumbersomeness, I normally cite merely the page numbers separated by a forward slash. The footnoted parenthetical citation “(141/122)” thus refers to p. 141 of the 1971 edition and p. 122 of the revised 1999 edition. Where there is a textual difference, I generally give the version from the revised edition; but I cite language from the earlier version where it seems to me illuminating. runs deep in the liberal moral sensibility and permeates American jurisprudence.This is one interpretation of the underlying idea of due process. See Daniels v. Williams, 474 U.S. 327, 331 (1986) (approving “the traditional and common sense notion that the Due Process Clause [of the federal Constitution], like its forebear in the Magna Carta, was ‘intended to secure the individual from the arbitrary exercise of the powers of government’” (internal citations omitted)). Even the very deferential “rational basis” standard under which the courts review Equal Protection challenges to social and economic regulation must avoid arbitrariness. A standard formulation is that similarly situated individuals must be treated similarly. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Reed v. Reed, 404 U.S. 71, 75–76 (1971); Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). Likewise, the most common level of review by the courts of decision making by administrative agencies is that the agency action will be overturned if “arbitrary and capricious.” 5 U.S.C. § 706; see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971); see also Davis & Pierce (1994: 200ff.), discussing the meaning of this test. Rawls’s theory of justice is the most profound and elaborated statement that we have of the intuition that justice is freedom from arbitrariness, that social benefits and burdens ought not be distributed on the basis of random factors over which people have no control. The whole apparatus of Rawls’s theory is at bottom a way of representing this intuition with clarity and precision. But the theory runs athwart the institution of the family. As Rawls acknowledges in his treatment of equality of opportunity, the family introduces an irreducible contingency into the circumstances of our social life that any acceptable theory of justice must accommodate. But Rawls’s accommodation is unsatisfactory in a way that reveals a deep—indeed, a fatal—problem with the fundamental conception of fairness. Because the family is ineliminable, we must give up a conception of justice based on correcting for the arbitrariness of the world, and adjust our notion of equality of opportunity accordingly.

In fact, law is necessarily very vague. So if vagueness is a problem for legal theory, it is a serious problem. The problem has to do with the ideal of the rule of law and with the very idea of law: if vague standards provide no guidance in some cases, how can the life of a community be ruled by law? The problem has long concerned philosophers of law; the papers at this symposium address it afresh by asking what legal theory may have to learn from (or contribute to) work on vagueness in philosophy of language and philosophy of logic. Here I will not try to state the implications of vagueness for philosophy of law; I will try to set the stage by showing that vagueness is both an important and an unavoidable feature of law.

Think of the color spectrum, spread out before you. You can identify the different colors with ease. But if you are asked to indicate the point at which one color ends and the next begins, you are at a loss. “There is no such point,” is a natural thought: One color just shades gradually into the next.

I. INTRODUCTION

Having developed his own complex and subtle theory of vagueness, Stephen Schiffer, in “A Little Help from Your Friends?” asks if philosophical theories of vagueness have anything to offer to jurisprudential concerns about vagueness. His answer is “no.”

There is much in the paper that I agree with, much that I do not understand and am probably not competent to understand, and some which I am puzzled by. I will concentrate on the last. Both regarding puzzles, and regarding points of agreement and incomprehension, I will be selective and touch on only a few.

An often overlooked aspect of the interpretive theory of intentionalism is the extent to which it relies on the notion of counterfactual intention. Intentionalism is the thesis that the interpretive meaning of legal texts is determined by the author’s intentions at the time of writing.Examples of writers who endorse different kinds of intentionalism for different reasons are the following: Alexander (1995); Goldsworthy (1997); MARMOR (1992), esp. p. 176ff; and Raz (1996). Authors’ intentions, however, like all psychological states, are often inchoate, conflicting, or inaccessible to interpreters due to conflicting or inadequate evidence. In such cases, intentionalists resort to counterfactual reasoning, that is, reasoning about the intentions that the author would have had under more optimal conditions than those that actually obtained. What is usually not noted is that counterfactuals are vague, and therefore that the resort to counterfactual intentions brings with it a significant risk of indeterminacy.Some of the ideas in this paper were first developed in STOLJAR (1998).

When I was invited to participate in this symposium, I welcomed what I thought would be the opportunity to apply my views about the semantics and logic of vague language to the real-life problems of vagueness legal theorists worry about. I confess to having formed my ambition without a very clear sense of what jurisprudential problems might be illuminated by general theories of vagueness. To be sure, I was able to guess that a symposium on Vagueness and Law must have something to do with the dilemmas courts face when it is indeterminate how a legal dispute should be resolved. What I had not thought through was how philosophers like myself might help to illuminate those dilemmas by bringing to bear on them their own logico-semantical theories of vagueness. This was unfortunate because, having done a bit of homework, I have reached the conclusion that philosophical theories of vagueness, even if true, have nothing to offer jurisprudential concerns about vagueness. Once she is reminded of certain platitudes about vagueness, the legal theorist needs no further help from philosophers of language and logic. Let’s see why this is so.

The papers published in this issue were delivered at a Symposium on Vagueness and Law at Columbia University Law School on September 24 and 25, 1999. The purpose of the seminar was to provide an opportunity for philosophers of law, philosophers of language, and philosophers of logic to discuss problems about vagueness that are currently under debate in all three areas.

Islamic building codes require mosques to face Mecca. The further Islam spreads, the more apt are believers to fall into a quandary. X faces Y only when the front of X is closer to Y than any other side of X. So the front of the mosque should be oriented along a shortest path to Mecca. Which way is that? Does the path to Mecca tunnel through the earth? Or does the path follow the surface of the earth?

While legal scholars increasingly recognize that norms as well as law influence social behavior, the nature of these effects is not well understood. A key question concerns the content of norms. Specifically, do they reflect individual interest or do they enhance group welfare? In this paper I describe two general kinds of arguments that support these different views. I then develop predictions about the content of a particular type of norm—controller selection rules. These hypotheses are tested in an experimental setting in which individuals interact with each other over networked computers. The findings are consistent with group welfare explanations. That is, they suggest that norms constrain actions that create negative externalities, and that these norms are stronger in more cohesive groups. They also suggest, however, that such norms may not necessarily produce pro-social behavior.

Austria was no more wrong in opposing our claims than we were in making them.

—Bismarck, on the Austro-Prussian War of 1866.ROBERT K. MASSIE, DREADNOUGHT 59 (Random House 1991).

Is it possible for good men to come to blows without anyone being to blame? And was World War I a real-life realization of that possibility? Those are the two questions this essay means to pursue.

In this article, I shall first try to examine the ways in which rights may conflict (or at least seem to conflict). This will be a sketchy survey at best, but I believe it may be helpful. I shall also consider how the resolution of the conflicts is not solely a function of the weight of the interest (as ordinarily understood) involved and consider what this suggests about the correct theory of rights. Finally, I will discuss how we might measure the relative strength of rights.When an attacker who threatens to cut off someone’s leg is killed by his potential victim in self-defense, it is sometimes said that there is a conflict between the right of the attacker not to be killed and the right of a person not to be harmed. However, this is a pseudo-conflict of rights, since the attacker’s right not to be killed is in some way weakened by his being a threat, at least for the purpose of eliminating the threat he presents. Considered alone and not weakened, how would we rank the rights involved in this case? How does the right not to have one’s leg be cut off compare with the right not to be killed? If I heard of two people, one of whom was threatened with violation of the first right and one who was threatened with violation of the second, I would think it right to help the second. This is some indication that I believe the second right is stronger. But this need not determine how we resolve all problems involving such rights, since in some cases the right may be weakened. For example, we may help the person attacked in the case I described rather than the attacker. Henceforth, I shall try to consider conflicts among unweakened rights. In this article, I draw on past work of mine in which I go into much greater detail about how conflicts to get scarce resources should be resolved and when it is permissible to harm some to save others. These more detailed discussions can be found in 1 MORALITY, MORTALITY, DEATH AND WHOM TO SAVE FROM IT and 2 MORALITY, MORTALITY, RIGHTS, DUTIES, AND STATUS (Oxford University Press 1993 and 1996); and in Toward the Essence of Nonconsequentialism, in FACT AND VALUE: ESSAYS ON ETHICS AND METAPHYSICS FOR JUDITH JARVIS THOMSON (A. Byrne et al., eds., M.I.T. Press 2001).