Legal Positivism and Internal Legal Statements

In three papers I have written upon the role of internal legal statements in positivist philosophy of law. One puzzle is why official participants in law practices do not make external legal statements, that is, why they do not speak of the law as a set of social facts about law practices that then trigger the norms of morality or prudence. Hart considers officials' making internal legal statements (or the adoption of the internal point of view) as a requirement for law's existence. This is a puzzle because, for positivists, law ultimately depends solely upon social facts about officials' law practices.

On Hart’s Category Mistake, 19 Legal Theory 347-69 (2013)

In his book Legality, Scott Shapiro’s criticized H.L.A. Hart’s theory of law as suffering from a “category mistake." According to Shapiro, Hart understood social rules as naturalistic entities (in particular, social practices), instead of abstract propositional objects. In partial defense of Shapiro, I argue that Shapiro is correct that an adequate theory of law must explain why participants in official law practices do not justify conformity because social facts about their law practices trigger practice-independent norms of morality or prudence. Instead, they justify conformity, using internal legal statements, by reference to legal norms. Shapiro's planning theory of law can explain this phenomenon. But I argue that Hart can also explain the phenomenon through an expressive theory of legal rules, without understanding law as a planning activity. Although participants in a practice fundamentally conform because social facts concerning the practice trigger norms of morality and prudence, participants eventually develop non-instrumental dispositions to conform, which express themselves in judgments that treat conformity as intrinsically valuable.

A Puzzle about Hart’s Theory of Internal Legal Statements, in Francesca Poggi & Alessandro Capone (eds.), Pragmatics and Law: Practical and Theoretical Perspectives 195-221 (Springer Verlag 2017)

This paper returns to the idea that participants in official law practices, making internal legal statements, do not justify conformity by looking to how social facts about their law practices trigger practice-independent norms of morality or prudence. I associate the view that officials ought to look to how social facts about their law practices implicate the norms of morality or prudence as the legal realist model. (It is the fundamental idea behind the legal realists' prediction theory of law.) And I spell out how the legal realist model is rejected under Shapiro's, Dworkin's, and Kelsen's theories of law. I then again offer an expressivist account of legal norms under which Hart too might also be able to reject the legal realist model.

The Semantic Thesis in Legal Positivism, in Torben Spaak & Patricia Mindus (eds.), Cambridge Companion to Legal Positivism 536-58 (Cambridge University Press 2021)

This is a comprehensive account of both internal legal statements and what Raz calls detached legal statements. Rather than employing an expressivist account of such statements, I adopt a pragmatic expressivist account, following work of Stephen Finlay and David Plunkett. Under this reading, such statements are descriptions of legal systems and laws as abstract objects. There is clearly a possible connection, which I hope to explore in future work, between this account of law and Kelsen's.


Permissions (Legal and Moral)

I have long questioned the idea that a permission to φ is simply the absence of a duty not to φ. I have finally started working on the topic.
 
Permissions, Deontic Voids, and the Karamazov Argument, 66 American Journal of Jurisprudence 291-307 (2021)

This is a review essay on Christoph Kletzer, The Idea of a Pure Theory of Law (Hart Publishing, 2018). In addition to exploring Joseph Raz's idea of an exclusionary permissions, I also take on Kletzer's use of what I call the Karamazov argument — that there would be moral permissions even if morality did not exist (“If God does not exist everything is permitted”). The fact that the argument fails shows that moral permission to φ cannot be understood as the mere absence of a moral duty not to φ.

Liberties and Absences, 17 Jurisprudence (forthcoming 2026)

This is a review essay on Matthew H. Kramer, Rights and Right-Holding: A Philosophical Investigation (Oxford Univ. Press 2024). My main focus is the following biconditional:

A holds a liberty vis-à-vis B that A φ if and only if it is not the case that A has a duty to B not to φ.

As I argued in the Kletzer review, concerning either moral or legal liberties (or permissions) this biconditional does not obtain, in the sense that the left side is true in all and only those possible worlds in which the right side is true. The left side implied asserts a number of propositions, and if they are false, the left side is false but the right side is true. For example, the left side impliedly asserts that there is a normative (that is, a moral or legal) system. If there is no moral or legal system, the left side is false and the right side is true. This is why the Karamazov argument fails.

But in this essay I go beyond this criticism. Even if we include on the right side everything that is impliedly asserted on left (which we can call the domain restrictions), such that the biconditional does obtain, it might obtain because a liberty to φ is its own normative state of affairs that is always present when a duty not to φ is absent within the domain restrictions or because a liberty to φ is the absence of a duty not to φ within the domain restrictions. I criticize Kramer for failing to distinguish between these two possibilities.