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125

In Pursuit of Pragmatic Legal Theory

Wil Waluchow

Critical Notice:
The Practice of Principle by Jules Coleman*

1. An Overview

The Practice of Principle is a substantially expanded and revised version of Jules

Coleman's Clarendon Lectures in Law, presented at Oxford University in 1998.
In this wide-ranging, provocative and immensely interesting book, Coleman has
two principal aims. First, he sets out to defend further his influential views on the
role of corrective justice in explaining tort law, together with his equally influential
jurisprudential theory about the nature and truth of legal positivism, viz., that the
criteria of legality accepted within a particular legal system can, but need not,
include moral conditions. This latter theory Coleman once called "incorpora-
tionism" but he now follows popular usage (among legal theorists) by referring
to this particular brand of legal positivism as "Inclusive Positivism." This enables
the theory to be more easily distinguished from the rival view espoused by its pos-
itivist opponents, most notably Joseph Raz, whose view is commonly referred to
(but not by Raz himself) as "Exclusive Positivism." According to Exclusive
Positivists, criteria of legal validity cannot, for a variety of theoretical reasons having
to do mainly with the law's claim to authority and its purported guidance function,
include moral conditions. Coleman's second principal aim is to illustrate and defend,
largely by way of demonstrating its theoretical potency in dealing with the sub-
stantive issues noted above, a particular methodological approach to legal theory.
This approach Coleman dubs "philosophical pragmatism" and it is, in large mea-
sure, the general philosophical orientation associated with philosophers such as
W.V.O. Quine, Wilfrid Sellars, Donald Davidson and Hilary Putnam. Coleman
stresses that these philosophers, with their commitment to pragmatist doctrines such
as "semantic content as inferential role," "holism" and the doctrine of "revisability,"
serve as his inspiration. He wishes to distance himself from approaches to legal
analysis which purport to eschew theory altogether, as well as from that form of
'pragmatism' which has "fallen into favor among the American legal academy,
where it is too often reduced to a series of slogans providing cover for a flourishing
philosophy-made-easy school of legal theory" (6).' Coleman does not name names,
but one suspects he has in mind the kind of legal "pragmatism" espoused by, e.g.,

•(Oxford: Oxford University Press, 2001) ISBN: 0-19-829814-5, pp. 246.

I would like lo thank Keith Culver and Mike Giudice for their very helpful comments on an earlier
draft of this essay.
1. Unless otherwise indicated, all page references included in the main text are to Jules L. Coleman,
The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (Oxford: Oxford
University Press, 2001).

Canadian Journal of Law and Jurisprudence Vol. XV, No.l (January 2002)
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126 Waluchow

Richard Posner, as well as the views of those who profess (with somewhat limited
understanding) the neo-pragmatism of contemporary post-modern philosophers
like Richard Rorty.

2. The Structure

Coleman's book is divided into three principal sections. Part I presupposes, and
largely draws upon, the substantive theories of tort law defended at greater length
in Risks and Wrongs.2 There, as elsewhere, Coleman defends the view that tort law
is best viewed as an institution structured to achieve "corrective justice." This is
the principle that "individuals who are responsible for the wrongful losses of others
have a duty to repair the losses" (15). The injured party has a right, in corrective
justice, to be made whole by his injurer, a right whose status is (typically) inde-
pendent of all questions of distributive justice, economic efficiency, or general com-
munity welfare. The aim of tort law is to correct a kind of imbalance or injustice
between the parties. For the most part, Coleman presupposes this substantive
account of tort law because his aim is not so much to defend it further as to illustrate
his philosophical pragmatism at work in its theoretical defence. Philosophical prag-
matism serves, he believes, as the best method for developing, and assessing the
relative merits of, philosophical explanations of law, or of some particular area of
the law, e.g., criminal law, constitutional law, and of course tort law. While this
part of the book will be of particular interest to those well-versed in contemporary
theories of tort law, and who have wondered about how such theories are to be con-
ceived and justified, it is to Coleman's credit that he is able to pitch his discussion
at a level which makes the debates both interesting and accessible to a much wider
audience.
The same can be said of Part II, which is dedicated to further defence of Inclusive
Legal Positivism against recent critics, including those who argue that Inclusive
Positivism is inconsistent with the "the Practical Difference Thesis." This latter
is the thesis that to count as law, a norm must be capable, at least in principle, of
affecting the structure or content of our practical reasoning. Determining how law
does so affect our practical reasoning is one of the enduring questions of jurispru-
dence, and Coleman manages not only to defend his particular answer to these ques-
tions but to impart to the reader some understanding of why these questions are
worth answering. In Part II, Coleman also draws upon Michael Bratman's notion
of a "Shared Co-operative Activity" in explaining the conventional, and duty-impos-
ing, nature of the positivist's rule of recognition.3 Coleman uses Bratman's account
to defuse Dworkin's long-standing objection that the positivist's rule of recognition
is incompatible with anything more than minor and infrequent disputes concerning
the grounds or conditions of legal validity. Shared Co-operative Activities are fully
compatible, Coleman believes, with considerable ongoing controversy about how

2. Jules L. Coleman, Risks and Wrongs (Cambridge, MA: Cambridge University Press, 1992).
3. Michael E. Bratman, "Shared Cooperative Activity" (1992) 101 Phil. Rev. 327; "Shared Intention"
(1993) 104 Ethics 97.

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In Pursuit of Pragmatic Legal Theory 127

to proceed in their application and development. How to reconcile law's conven-

tional nature with the fact that disagreement about legal matters is endemic to the
enterprise is a question which has plagued Legal Positivism since it was raised and
highlighted by Ronald Dworkin in his ground-breaking work in the 70s. Again,
Coleman not only provides interesting and promising answers to Dworkin's ques-
tion, but also manages to explain why the issues continue to be of such deep the-
oretical interest among jurisprudential scholars.
Part III defends a kind of "descriptive jurisprudence" which, as we will see,
seems to lie somewhere between Hart's "descriptive sociology" and Dworkin's
"constructive interpretations." On Coleman's account, descriptive jurisprudence
is far from "value free." In developing and assessing theoretical explanations of
law, Colemanfindsample room not only for meta-theoretical norms like simplicity,
coherence and consilience, but also for full-blooded moral norms. This leads to
important questions which should be of interest not only to legal philosophers, but
to anyone concerned about the possibility of "value neutral" accounts of social phe-
nomena like legal practice. What, if anything, distinguishes Coleman's "descriptive
jurisprudence" from the Dworkinian morally charged, constructive interpretations
which set out not to describe but to place a social practice in its best moral light?
And what, if anything, distinguishes Coleman's methodological pragmatism from
the self-consciously "moralistic" development and evaluation of legal theories
endorsed by some contemporary writers in whose view the perennial questions of
jurisprudence cannot be answered without asking what the concept of law ought
morally to be. Perhaps the most enduring legacy of The Practice of Principle will
be its success in highlighting the importance, and philosophical interest, of these
crucial methodological questions.

3. Questions of Methodology

At the outset of The Practice of Principle, Coleman distinguishes "theoretical

explanations" and "theoretical justifications" (3). While both types of theory can
illuminate and enrich our understanding of an object or practice, "explanations do
so by telling us what the nature of a thing is, or by telling us why things are as they
are..." (3). Justifications, on the other hand, "seek to defend or legitimate certain
kinds of things—for example, actions, rules, courses of conduct, practices, insti-
tutions, and the like." (3). This seemingly straight-forward distinction is highly con-
troversial among many legal theorists who deny that one can determine the "nature"
of a social practice like law without addressing questions concerning its moral jus-
tification. According to some, e.g., Ronald Dworkin, all theories of law are "con-
structive interpretations" which necessarily engage questions of moral justification.4
This is because a constructive interpretation of a social practice like law is an
attempt to place its object in its "best moral light." According to other theorists,
e.g., Neil MacCormick and Liam Murphy, one cannot fully defend a conception

4. See Ronald Dworkin, Law's Empire (Cambridge, MA: Belknap Press, 1986), passim.

of law without inquiring as to the moral consequences of adopting that conception.5

Theoretical explanations are, on this view, "moralistic" cases for a particular way
of conceiving a practice like law. In both instances, theoretical explanation blends
into theoretical justification, rendering Coleman's distinction misleading if not
wrongheaded. Coleman is well aware of the challenge posed to his endeavour by
the proponents of constructive interpretation, and spends considerable time in Part
III addressing the shortcomings of this method. I think that he more than meets
the challenge posed by these critics. But it is not clear that he has managed to fend
off the challenge posed by the proponents of moralistic legal theory—or so I shall
argue later.
Having declared his interest in pursuing theoretical explanation of law, Coleman
further divides this enterprise into three basic types: "conceptual explanations,"
"causal-functional explanations" and "constructive interpretations." A conceptual
explanation of a social practice like law, or some particular area of law such as torts,
seeks to deepen our understanding of the practice by deepening our understanding
of the concepts embedded in the practice and the schemes of practical reasoning
in which the concepts figure. It is, in short, conceptual analysis. A causal-functional
explanation seeks to explain the relevant practice by positing a particular function,
e.g., the maximization of cost reduction or the solving of prisoner's dilemmas, as
part of a causal explanation of its existence, structure and content. Constructive
interpretations, on the other hand, seek to place the relevant practice in its best
moral light, by revealing its point or purpose and how (or how not) its various ele-
ments hang together coherently in service of that moral ideal, and perhaps how
they might be improved in light of the ideal. In so doing, constructive interpretations
seek both to explain and justify the object of interpretation, thus blurring the dis-
tinction between theoretical explanation and theoretical justification, and between
analytic and normative jurisprudence as these two enterprises have traditionally
been understood by positivists like Austin and Hart.
Conceptual explanation is what Coleman purports to be providing when he
defends his substantive positions on the nature of law (Inclusive Positivism) and
on the nature of tort law (the Corrective Justice account). But he does spend time
discussing, and evaluating the efforts of others to provide, causal-functional and
constructive explanations. With respect to causal-functional explanations,
Coleman's main concern is to show that economic theories of law, even if viewed
as causal-functional explanations, are unsuccessful. They are unsuccessful because
they fail to provide a plausible causal mechanism to explain why the rules and prac-
tices of tort law are geared towards achieving economic goals like maximally effi-
cient risk reduction (that tort law is so geared is, of course, something flatly denied
by Coleman's corrective justice account). As for constructive interpretations,
Coleman's aim is essentially to distance these "exercise[s] in first order moral
and political theory" (xx) from his kind of conceptual analysis, i.e., from his

5. Neil MacCormick, "A Moralistic Case for A-Moralistic Law?" (1985) 20 Valparaiso L. Rev.
1; Liam Murphy "The Political Question of the Concept of Law" in Jules L. Coleman, ed., Hart's
Postscript: Essays on the Postscript to the Concept of Law (Oxford: Clarendon Press, 2001).

pragmatically oriented, theoretical explanations, to show the respects in which the

latter can be norm-governed without compromising their claim to being instances
of "descriptive jurisprudence."

4. Conceptual Explanation and the Method of Pragmatism

According to Coleman, conceptual explanation is best (or always, despite

contrary beliefs on the part of some of its practitioners?) pursued by way of "the
method of pragmatism." It is this kind of philosophising in which Coleman purports
to be engaged throughout the book. The method is characterized in relation to five
basic characteristics, (i) "semantic non- atomism" denies that any single semantic
element, e.g., a word or a proposition, has a determinate meaning which is inde-
pendent of at least some other semantic elements. It asserts that the conditions of
application of a concept, and/or the (ruth value of a proposition in which the concept
figures, depend on its/their relations with other concepts and propositions. These
relations are typically inferential, leading to the second characteristic of Coleman's
pragmatic method, (ii) "inferential role semantics!' This is the view that "the content
of a concept can be analyzed in terms of the inferential role it plays in the variety
of practices in which it figures. The inferential roles our concepts play reveal the
holistic (or semi-holistic) web of relations in which they stand to one another, and
it is this web that determines a concept's content" (7). The third characteristic
Coleman calls "explanation by embodiment" This is the view (iii) "that sometimes
a philosophical explanation of a practice takes the form of showing how certain
principles are embodied in it" (6). Coleman's view, of course, is that the principle
embodied in the practice of tort law is corrective justice, not the principle of eco-
nomic efficiency. Corrective justice properly identifies certain elements of the prac-
tice as "normatively significant." For example, the corrective justice principle
identifies, highlights and explains the relation between tortfeasor and injured party,
i.e., tells us why this relationship is so significant and helps us to understand the
role it plays in structuring tort practice and the various practical inferences it war-
rants. For example, it renders intelligible the (usual) requirement that it is the injured
party alone who can sue the tortfeasor and is owed compensation. In this sense,
the principle can be seen as "embodied" in the very practice of tort law. On the
other hand, viewing the principle of economic efficiency as embodied in tort law
renders the centrality of the relationship between tortfeasor and victim mysterious
at best. We are left wondering why this relationship is so vital to the practice since
it is always "an open question" whether economic efficiency is best pursued by
focussing on the relationship between victim and injurer.
A further characteristic of Coleman's method of pragmatism is (iv) "semantic
holism," the view that "the meaning of a concept in any one practice influences
its proper meaning in all the others [in which it figures]" (8). What counts as a
promise within interpersonal contexts depends on the practice of promising as it
plays out in legal and political contexts. Similarly, what counts as a duty of repair
within the context of tort law depends on the manner in which that concept figures
in political and personal contexts. A final characteristic of philosophical pragmatism

is (v) the "commitment to the "in-principle revisability" of all beliefs, categories

of thought, etc." (6, emphasis added) Everyone agrees that empirical beliefs are
always revisable in light of empirical evidence. But some maintain that there are
certain beliefs that are immune to revision, either because they purportedly express
analytic truths (e.g., 'All bachelors are male'; 'Law is the command of a sovereign')
in which the very meanings of the terms employed guarantee truth value, or
because, though not analytic, they are for some other reason knowable a priori (e.g.,
the proposition 'Nothing can come from nothing'). On Coleman's philosophical
pragmatism, no belief, principle, conceptual category or rule of inference (including
a rule of formal logic like Modus Ponens) is immune to revision. Any element of
one's belief system or theory, is always, in principle, revisable in light of empirical
evidence or pragmatic considerations. The latter include "such theoretical concerns
as coherence, simplicity and consilience, together with considerations of practical
usefulness" (9). In Coleman's view, "all statements are in principle revisable in
light of both of these kinds of concerns" (9).

5. Value Free Jurisprudence?

Anyone who rejects both the view that there can be such a thing as "value free
jurisprudence" and the view that any theoretical explanation of a social practice
like law or tort law is, in reality, always a morally motivated, constructive inter-
pretation, will find much of value in Coleman's methodology. He is absolutely right
in stressing that the evaluation of a theoretical explanation—either in its develop-
ment or its later assessment against competitors—is a thoroughly normative affair.
Simply put, one cannot engage in evaluation without invoking some norms or val-
ues, if only non-moral, uncontroversial ones like simplicity, elegance, consilience
and so on. If endorsing descriptive theoretical explanation means rejecting appeal
to such "meta-theoretical values," then absolutely no one endorses descriptive
jurisprudence.6 "Theories and concepts are normative both in their construction

6. For the distinction between "meta-theoretical- evaluative" and "moral-evaluative" factors, see
ch. 2 of my Inclusive Legal Positivism (Oxford: Clarendon Press, 1994). I cannot resist the oppor-
tunity to distance myself from the rather naive "descriptive" methodology Coleman attributes
to my arguments in Inclusive Legal Positivism at pages 109-11. In Chapter two of that book, I
make plain the various ways in which values, including moral values, enter into what 1 call
"descriptive-explanatory theories" of the kind I advance. The word "descriptive" was used to
distance my efforts—and those of Hart—from the morally charged, constructive interpretations
of Ronald Dworkin. But I nowhere claim, or argue, that Inclusive Positivism is a good theory
simply because it offers a better description of legal practices in the way in which a description
of Europe that mentions France is better than one that does not. Rather the argument is that it
offers a better descriptive-e*p/a/KMory account ("interpretation," if one likes) of various legal
phenomena. The aim is to explain without commending, and it is for this reason that 1 followed
Hart in referring to my approach as "descriptive-explanatory." My approach is perhaps best
summed up by Hart's description of his own efforts: "My account is descriptive in that it is
morally neutral and has no justificatory aims: it does not seek to justify or commend on moral
or other grounds the forms and structures which appear in my general account of law, though
a clear understanding of these is ... an important preliminary to any useful moral criticism of
law." ("Postscript" to The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994) at 240)
Among the "forms and structures" best explained by Inclusive Positivism are Charter Rights
systems and the challenges to legal validity which occur within them.

and ambition. They are responsive to the norms governing theory construction, and
aim not merely to report on linguistic behavior, but to discipline use and to structure
thought. This is in the very nature of philosophical inquiry into concepts ... [l]f
this is what conceptual analysis applied to law amounts to, then it is normative
through and through. It could not be otherwise." (177-78).
Coleman is also absolutely right in arguing, principally in Chapter 12, that invok-
ing moral values in the course of theory development and assessment does not nec-
essarily imply that the theorist has engaged the process of constructive
interpretation.7 It is crucial to be clear that one can invoke moral values and prin-
ciples without using them to place the object of interpretation in its best moral light.
An excellent illustration of this point is found in Coleman's discussion of how the
principles of corrective justice and fairness play a pivotal role in explaining tort
law and the ways in which the latter is distinctly different from, e.g., criminal or
tax law. (See, generally, Part I.) Although Coleman acknowledges that the practice
of tort law, in which the principles of fairness and corrective justice are "embodied,"
is a valuable social institution, he makes clear that the theoretical adequacy of his
account in no way depends on the truth of that claim.

Legal positivism does not deny that the law of a community, in part or in general,
can be morally defensible or otherwise express or embody moral ideals. One might
even hope this is often the case; even positivists are entitled to do so. Legal positivism
denies only that areas of the law must embody or express the demands of morality
as a condition of their legality; and the argument of thefirstpart of the book is that
Anglo-American tort law is best understood as articulating a conception of corrective
justice. Moreover, whereas I defend the view that corrective justice is a morally attrac-
tive ideal, my argument that Anglo-American tort law embodies it does not depend
on this fact about it. (xix)

These are important claims. But they are also very subtle and easily misunderstood.
What could Coleman possibly mean in suggesting that a theoretical explanation
which invokes a moral principle to explain a social institution might not depend
on the moral value of that practice? If a social institution is said to embody a moral
principle, does this not mean that it is said to have moral value? And if so, in claim-
ing that a social institution is best explained as the (or an) embodiment of that moral
principle, is one not thereby engaging in constructive interpretation? As Coleman
rightly argues, the answer to both questions is a resounding "No." One can explain
why it makes sense for people to want their practices to embody a certain moral
principle without thereby endorsing the principle as one which should be embodied
in that particular way. In my view it makes sense for people to want their criminal
laws to respect the moral principle of the sanctity of all human life, thereby

7. For another set of arguments in support of this conclusion, see Hart, ibid. See also Raz's discussion
of what he calls the "detached" point of view in The Authority of Law: Essays on Law and
Morality (Oxford: Clarendon Press, 1979) at 140-43, 153-57. Of equal importance is Hart's
response to Dworkin's attempt to convert The Concept of Law into an "essay in constructive inter-
pretation." For Hart's response, see the "Postscript," supra note 7 at 242-44. As Hart notes,
"Description may still be description, even when what is described is an evaluation" (ibid, at
244).

outlawing physician assisted suicide and voluntary euthanasia. But I also believe
that the principle should not be used in that particular way, because it does not in
fact support these particular laws. It does not provide this support, even though
it makes sense to suppose that it might, and even though I think that this principle
explains much current law. I can understand what people might have been thinking
when they created these laws without my believing that they've got things right.
In like fashion, one can use a moral principle in explaining the structural features,
basic concepts and patterns of inference inherent in a practice without in any way
endorsing the practice or the principle it embodies. One can posit the principle as
making sense of these features, viz., showing why they are as they are, rendering
them intelligible, without endorsing anything at all, aside from the claim that the
practice makes sense. And even if one were to endorse the moral principle embod-
ied in the practice, one needn't endorse the particular manner in which its require-
ments are made concrete in the social practice under consideration. Perhaps the
principle has been misapplied, as I think the sanctity of human life principle has
been misapplied in some jurisdictions where it is thought to justify capital pun-
ishment. Finally, there might be competing moral considerations which argue in
favour of a wholesale revision or rejection of the practice, attractive as it might be
because of the principle it (successfully or not) embodies. This might even be the
case with respect to tort law. Perhaps tort law, attractive as it is because it embodies,
with varying degrees of success, the principle of corrective justice, together with
the view that fairness requires us to assume responsibility for the outcomes of our
choices,8 must be replaced by a system of "risk management." This might be a sys-
tem in which the costs of negligent conduct are assumed by a "no fault," tax-payer-
funded, general insurance scheme. Perhaps the latter, though it compromises
corrective justice, is more alive to the realities of modern life and the myriad ways
in which our (relatively) innocent conduct can be harmful to others. All this can
be said without transforming one's theoretical explanation into a constructive inter-
pretation which purports to justify the relevant social practice by putting it in its
best moral light.
So employment of moral norms in explaining a social practice does not, in itself,
entail that one has begun the process of constructive interpretation. But those who
believe that constructive interpretation is the only available method of theoretical
explanation do not all rest their cases on this supposed entailment. Stephen Perry
has advanced a series of arguments against the kind of descriptive jurisprudence
sketched above. His most notable argument is what Coleman calls the "Subject
Matter Argument." Coleman writes:
The claim that jurisprudence is normative could be understood as the claim that before
conceptual analysis can even begin we need to appeal to some norm or standard in
order to pick out the features of law to which the concept of law must answer. We
need to identify, if only in a provisional and revisable form, which features of law
are central to the concept. We need reasons for including law's claim to authority

8. For Coleman's views on this aspect of corrective justice in relation to fairness, see supra note
1 at 44ff.

and its institutional nature while excluding the fact that judges usually wear robes.
This process of selecting the salient features of the concept is inevitably normative.
It reflects not only different and distinct philosophical interests, but may reflect dif-
ferent and distinct conceptions of the point or purpose of law as well. (199)

In other words, descriptive jurisprudence presupposes that there are "theory-neutral

data" for which competing theories are to account. But as philosophers of science
have long argued, there are no such data. That one picks out X instead of Y as a
feature in need of explanation—indeed, that one chooses to conceive or describe
the feature in question as "X" as opposed to "Z"—are all determined in advance
by one's theoretical commitments. In the case of a social practice like law, these
theoretical commitments are one's moral views as to the point or purpose of the
practice. One cannot, in other words, describe without morally evaluating. All pur-
ported attempts to engage in morally neutral, conceptual analysis are in fact dis-
guised constructive interpretations.
This is an argument that has been frequently levelled against proponents of
"descriptive jurisprudence." Coleman's response is direct and to die point. As Hart
and others have said, "It is one thing to claim that normative considerations figure
in the project of identifying the features of law the theory of the concept must
account for; quite another to claim mat the norms to which one must appeal are
those of political morality" (199). This is the familiar point that there are values,
and then there are moral values. Values (or norms) like consilience, elegance, sim-
plicity and so on govern theory development and assessment in allfieldsof inquiry,
including conceptual analysis. If these can be invoked in isolating a tentative list
of "salient features" to be explained, then there is no need to invoke moral norms
in developing a descriptive-explanatory theory of concepts like 'law' and 'tort law.'
Furthermore, as Colemanrightlyobserves (in a manner reminiscent of recent work
in analytic philosophy of mind and language) that conceptual analysis can take its
bearings from "folk theory" (200). In the case of the concept of law, common usage
suggests a more or less comprehensive, if incompletely articulated, rationalized
and inherently revisable, understanding of law's salient features. These include
rules, adjudicatory machinery, claims to authority, coercion, etc. Folk theory pro-
vides ample raw materials from which a conceptual analysis can begin.9 This raw
material, rich mough it is, can easily be supplemented by usage within certain
"expert discourses such as social-scientific inquiry" (200).

A philosophical inquiry into the concept of law should be able to illuminate something
about the practices that have been picked out as law in the social sciences, while
explaining the importance of and die connections between the features that have fig-
ured prominently in the accounts of various social scientists of law. In the end die
purposes of philosophical inquiry need not, and probably will not, fully coincide with
all of the purposes of the social sciences; but a satisfactory philosophical account
should be continuous with these more naturalistic inquiries. (201)

9. Hart makes a similar point when he writes of his descriptive-explanatory project in The Concept
of Law, "The starting-point for this clarificatory task is the widespread common knowledge of
the salient features of a modern municipal legal system which on page 3 of [The Concept of
Law] I attribute to any educated man." ("Postscript," supra note 6).

In light of these kinds of considerations, Coleman is led to conclude that the

"Subject Matter Argument" fails on a number of fronts. It would have us infer, from
the true premise that norms are involved in theory development and evaluation,
the false conclusions that moral norms must be invoked in the manner required
by constructive interpretation. Furthermore, it ignores the richness of the "raw data"
from which conceptual analysis can begin. In particular, it ignores semantic holism,
the view that the meaning of a concept in any one practice influences its proper
meaning in all the others in which it figures. In setting out to analyze a concept
like "law," it is possible to get one's bearings, i.e., discern salient features of the
phenomenon to be explained, by looking to the way in which that concept figures
in other spheres of inquiry and usage, including folk theory. There is nothing
viciously circular here, and nothing which necessarily involves appeal to moral
argument.
Coleman's discussion of the arguments against descriptive jurisprudence encom-
passes far more than I have been able to address here. He considers a number of
further arguments like "The Argument from Weak Commendation" (application
of the concept "law" entails moral commendation of the object denoted, thus sug-
gesting that analysis of that concept is moral analysis), "The Function Argument"
(theories of law necessarily ascribe a moral function to law and are therefore con-
structive interpretations) and "The Internal Point of View Argument" (recognizing
that the internal point of view is necessary for the very existence of law is tanta-
mount to recognizing that law provides a morally attractive way of guiding human
conduct, again suggesting that analysis of the concept of law is moral analysis).
He also addresses Brian Leiter's recent claim that conceptual analysis is impotent
and needs to be replaced by "naturalized jurisprudence." This replaces conceptual
analysis—which fails because controversy survives exhaustive debate about the
contours of the concept of law—with sociology, psychology, anthropology or eco-
nomics of law. In each instance, Coleman shows the limitations of the argument
and how it underestimates the resources available to conceptual analysis.

6.The Engineering Project

Another group of contemporary theorists who underestimate the resources avail-

able to descriptive jurisprudence wish to see it abandoned in favour of what
Coleman calls the "engineering" or "disciplining" projects. These engineers insist
that no amount of reflection on the concept of law, even if guided by moral con-
siderations in the manner of constructive interpretation, or by Coleman's philo-
sophical pragmatism, will yield right answers to the fundamental questions of
jurisprudence. In particular, no amount of conceptual analysis will yield answers
to the questions dividing Inclusive and Exclusive Legal Positivists on the role of
moral factors in determining legal validity. Given this impasse, we have no alter-
native but to engineer a more refined concept of law which answers these questions.
And if this is what we must do, then a key question naturally arises: Why not fash-
ion a concept which is responsive to the practical concerns of political morality?
According to the engineers, the relevant and interesting question is not whether

the concept of law now permits moral conditions on validity—that cannot be

answered by conceptual analysis or any other kind of theoretical explanation—but
whether there are good reasons of political morality to develop the concept in such
a way that this conceptual possibility is either acknowledged or ruled out. The ques-
tion is not what the concept of law is, but what it ought to be.
Coleman's response to the "practical-political challenge to conceptual analysis"
posed by the engineers begins with a point reminiscent of Dworkin's early claims
about the need for strong discretion. From the fact that there is long-standing and
widespread disagreement on the question raised in a legal case, it does not follow
that there is no right answer to that question and that judges must therefore simply
choose an answer on some moral ground or other. Dworkin's insight applies equally
well to philosophical reasoning under similar conditions of uncertainty and dis-
agreement. That controversy seems endemic to the enterprise of explaining the
nature of law via conceptual analysis and does not imply that there are no answers
to the questions posed by such analysis. Perhaps we just need to work a bit harder.
Furthermore, "if the challenge is that the concept is incomplete if there remains
disagreement about its content, then no philosophically interesting concept is precise
or adequately analyzed" (210).
Coleman's second response to the practical-political challenge is not quite so
straightforward and it reveals, perhaps, a point where his philosophical pragmatism
stands in need of further development and/or explanation.
[0]n my view there is no reason to suppose that conceptual analysis is not responsive
to practical considerations. My objection to such projects is not that its advocates
allow appeal to practical considerations; rather, they do not understand that conceptual
analysis—at least when it is of the pragmatist variety 1 have defended—is always
responsive to such considerations. Those who level this charge against conceptual
analysis underestimate the extent of the resources available to it. They have in mind
a picture of conceptual analysis that is immune from practical or political consid-
erations. What they offer as an alternative to conceptual analysis is already a part
of it. (210)

So conceptual analysis, insofar as it is a form of theoretical explanation that is

responsive to practical concerns of political morality, actually contains the engi-
neering project. As a result, the latter hardly poses a challenge to the former. But
let us pause for a moment and ask whether this response is adequate. Engineers
claim that practical concerns of political morality enter theoretical explanations
of law, but only at the point where conceptual analysis proves indeterminate or inde-
cisive. Coleman's response is to deny this restriction, to claim that practical concerns
of political morality are always relevant in doing conceptual analysis. But now we
are faced with an important question. If practical concerns of political morality are
always relevant in conceptual theories of law, what distinguishes Coleman's philo-
sophical pragmatism from the method of constructive interpretation? Interpretivists
claim that practical concerns of political morality are always a part of theoretical
explanations of law because they are always (transparent or disguised) constructive
interpretations. Has Coleman succeeded in fending off one opponent only to expose
his other flank? Perhaps not. There are at least two avenues open to Coleman in

explaining why he has not, in asserting that norms of political morality are always
relevant in theoretical explanations, collapsed his philosophical pragmatism into
constructive interpretation.
First, as noted above, a moral principle (e.g., corrective justice) can play an
explanatory role in theoretical accounts without also playing a justificatory role.
One can invoke the principle of corrective justice in explaining—making sense of—
the centrality of the injurer/injured party relationship without using it to justify that
relationship and the legal scheme it explains. True enough, but according to the
engineers, theoretical explanation of the general social practice of law has reached
a dead end. It has, for example, reached the point where the debate between
Inclusive and Exclusive Positivists cannot be settled without asking what our con-
cept of law ought (morally) to be. No amount of explanation, even one which
invokes norms of political morality in the manner sketched by Coleman, will allow
us to make progress in this debate. So it is no answer to the engineers simply to
assert that concerns of political morality are always relevant in explaining the con-
cept of law, because in their view invoking these concerns in an attempt to offer
an explanation of the concept of law cannot succeed. Coleman's purported the-
oretical explanations are in fact veiled attempts at theoretical justification.
A second possible way in which Coleman might defend against the charge that
he has surrendered to the engineers might be to draw upon a distinction he implicitly
mentions on several occasions but leaves undeveloped. I have in mind the distinction
between the "retrieval" and the "revision" of a concept like "law." Recall the fifth
tenet of Coleman's philosophical pragmatism which asserts the "in-principle revis-
ability" of all beliefs, categories of thought, and concepts. For a pragmatist, every
concept is in principle revisable in the light of all sorts of considerations, including
moral ones. This suggests the following question: Might Coleman's view be that
practical concerns of political morality always figure in arguments for revising the
concept of law—perhaps in a way which provides it the kind of precision sought
by the engineers—but not in its retrieval! In other words, could it be that moral
principles do sometimes enter as justifications but only when the conceptual analyst
has turned from the attempt to retrieve the concept embodied in practice towards
the task of justifying its revision, i.e., from an attempt to explain what the concept
is, towards the task of deciding what, given the full range of relevant pragmatic
considerations, it ought to bel Unfortunately for Coleman, this response too
amounts to a wholesale surrender. Revising a concept is, after all, just the kind of
engineering that the engineers claim is necessary at this point. Perhaps I am mis-
taken in thinking that revision is a form of engineering, but if so we need an expla-
nation of the difference between the two, not to mention an explanation of the
difference between arguments designed to "retrieve" the concept of law and those
designed to "revise" it. Perhaps for a pragmatist like Coleman there is no principled
distinction between the two activities. This seems plausible, given the fifth tenet
of his philosophical pragmatism: the "in-principle revisability" of all beliefs, cat-
egories, concepts, and so on. If every concept is always, in principle, revisable, then
perhaps one cannot attempt to "retrieve" a concept without at the same time asking
whether it should be revised. But if so, then one is left with an equally troublesome

(for Coleman) conclusion. If there is, in principle, no distinction between retrieval

and revision of a concept, then there would appear to be no distinction between
conceptual analysis, as understood by a philosophical pragmatist such as Coleman,
and constructive interpretation, as understood by Dworkin. In both cases we need
arguments of political morality to "retrieve/revise" the concept of law. Since this
is a conclusion Coleman strenuously attempts to avoid, we are owed, I think, a
clearer discussion of the difference between retrieval and revision and the standards
appropriate to each activity.

7. Corrective Justice v. Economic Theory

Relying on his argument that conceptual analysis in the service of the pragmatic
method provides a coherent and powerful methodology of jurisprudence, Coleman
shows in Part I of The Practice of Principle that, on that playing field, corrective
justice theories of tort law easily trump the rival economic theories of, e.g., Posner
and Guido Calabresi.10 On these latter theories, the institution of tort law reflects
the function of producing optimal economic efficiency, and the concepts central
to tort law, e.g., negligence, unreasonable risk, duty of repair, are best understood
in terms of this goal. As conceptual analysis, economic theories fail abysmally
because they fail to illuminate the relationships among such concepts and the infer-
ences drawn in their terms. They mystify, e.g., the fact that, in a typical tort suit
only the victim (or his representative) can sue the alleged injurer, not the party such
that, were that party made liable to pay compensation, optimal risk reduction (in
terms of injuries avoided, opportunities lost, and penalties paid) would result. Our
"pretheoretic conception of the central elements of the practice [of tort law], espe-
cially those that have normative significance" (15, n.2) inform us that the central
question in a tort case is not whether holding X liable for injury to Y will advance
overall economic efficiency, but whether X owes Y compensation as a matter of
corrective justice between the two parties. This is part of the "core" of tort law,
a core which is structured on this bilateral relationship between victim and injurer.
Of course economic theories have been developed to explain the bilateral structure
of tort law. On these accounts, that the tortfeasor should be held liable for com-
pensating the victim is explained in terms of economic goals like providing victims
with incentives to litigate and encouraging both victims and injurers to take optimal
precautions in avoiding future injuries. Coleman spends some time disputing these
theories on their own economic grounds, but his main objection goes far deeper
than this. Even if an economic theory could be developed to show that the bilateral
structure of tort law in some way maximizes efficiency, it must fail because it does
so at the cost of "disconnecting the injurer from the victim" (20). It is only "acci-
dental" that the injurer is the one whose liability achieves maximum efficiency.
"There may be some overlap between the class of injurers and that of optimal cost
reducers, but any such overlap can only be accidental." "In any case in which A

10. See, e.g., Richard A. Posner, Economic Analysis of Law, 4th ed. (Boston: Little, Brown &
Company, 1992) and Guido Calabresi The Costs ofAccidents: A Legal and Economic Analysis
(New Haven, CT: Yale University Press, 1970).

hits B, it is an open question whether k,B,C,D,E... is in the best position to reduce

the future risks at the lowest cost" (18). This alone is fatal to the economic theory.
In reading Coleman's "open-question" response to the economic theory, one
is reminded of parallel claims which are sometimes made against utilitarians and
the way in which they attempt to account for duties like the obligation to keep
promises or the duty not to punish the innocent. Utilitarians invoke a wide range
of direct and indirect consequences of practices governing promises and punishment
in defending their view that, for all practical purposes, it is (almost) never the case
that one should renege on a promise or punish an innocent party." The reply often
made is that such contingent considerations are insufficient to account for the per-
ceived "bindingness" of the relevant duties. It is never, even in principle, right to
punish the innocent. But on the utilitarian's theory, this remains an "open question."
It remains an open question even if it happens to be true, in real life, that the ques-
tion is, for all intents and purposes, always closed. Utilitarians may get the right
answer, viz., we should never punish the innocent, but for the wrong reasons (utility
maximization versus the in-principle wrongfulness of such an act).
This is a powerful objection to utilitarianism, and it loses none of its force when
applied to an economic theory construed as a form of theoretical explanation. But
this raises the question whether this is the best way to construe economic theories.
As noted above, Coleman divides theoretical explanations into three basic cate-
gories. In addition to conceptual explanation there are "causal-functional expla-
nations" and "constructive interpretations." Coleman spends considerable time
addressing the theoretical adequacy of each alternative construal of the economists'
project. As constructive interpretation, the project is wanting on two basic grounds.
First, a constructive interpretation must "fit" the practice it seeks to interpret. But
for reasons sketched above, e.g., its inability to mesh with the bilateral nature of
adjudication under tort law, the economic theory fails badly to fit the practice.
Secondly, economic theory fails equally on the dimension of political morality.
The economists fail to offer any account of why the pursuit of economic effi-
ciency—as opposed to corrective justice in the service of fairness—should be
thought to be a morally good thing, as something which succeeds in placing tort
law in its best moral light. This leaves the possibility that economic theories are
best construed as causal-functional explanations which posit, as the function of
tort law, the achievement of maximally efficient risk reduction. Aside from the
familiar fact that the structure of tort law seems not to be geared towards achieving
economic efficiency, Coleman's principal objection to viewing economic theories
as causal-functional explanations is that they posit no plausible causal mechanism
to explain why the rules and practices of tort law are structured to achieve economic
goals. As a result, they remain "just so" stories of the shape of tort law. They assert
(falsely in Coleman's view) a correlation between the achievement of efficient risk
reduction and the rules of tort law without any explanation of the mechanism by
which the former supposedly causes the latter to be what they are.

11. A highly influential discussion of utilitarianism in relation to the duty not to punish the innocent
can be found in John Rawls' classic paper "Two Concepts of Rules" (1955) 64 Phil. Rev. 3.

8. Economic Theory: A Response?

How might a devotee of the economic theory of tort law respond to Coleman's
attack on these fronts? One response might be to note the following simple point:
From the fact that a crucial element is lacking in a theory, it fails to follow that no
such element could be provided. Perhaps the economic theorists are content, at this
stage, to defend the proposition that there is a widespread correlation between the
rules of tort law and goals like efficient risk reduction—no mean feat in itself—in
the belief that a suitable causal story can at some point be provided. Perhaps the
same can be said of the case for economic efficiency as a morally worthy ideal.
That economists tend not to argue in favour of the relative value of optimal risk
reduction does not entail that it cannot be defended. Nor is it mysterious why many
might want tort law to be modelled on the pursuit of this ideal. A society in which
the costs of living together in close proximity to one another are assumed by gen-
eral, no-fault insurance schemes of compensation, viz., in which me various con-
nections between injurer and injured party embedded in traditional tort law are
loosened if not severed, is not obviously morally undesirable. Indeed, it is one which
many people find, intuitively, morally attractive. So perhaps Coleman has revealed
work yet to be done by economic theorists and not shown that it is destined to fail
in that endeavour.
This last point leads to one of perhaps greater significance. In his highly com-
mendable pursuit of clarity and rigour, Coleman has divided theoretical endeavours
into two basic categories: theoretical justifications and theoretical explanations.
He has further subdivided the latter into three basic types: conceptual explanation,
causal-functional explanation and constructive interpretation. But perhaps this
inventory is incomplete and the true nature of economic theories cannot be iden-
tified with any of these options. Take, in particular, theoretical explanations. If we
are talking about explanations of a more or less static object, then these may well
exhaust the possibilities. One either explains the concepts, patterns of inference
and so on embedded in a social practice like law; provides a causal story as to why
it has the shape, structure and content that it does; or attempts to "interpret" the
practice by placing it in its best moral light. But suppose now that the object is not
static, but is in the process of transition. Suppose, as should seem altogether possible
to one wedded to philosophical pragmatism, that the practice of tort law is in the
process of changing or evolving. It is evolving from one whose concepts, patterns
of inference, function and moral aspirations embody corrective justice to one more
responsive, though perhaps not completely, to economic goals like efficiency, risk
reduction, and so on. This is by no means an implausible scenario. One of the effects
of rapidly changing technologies and evolving ways of life is that personal inter-
actions are becoming increasingly complex, multi-faceted, variable—and (to many)
mystifying. In such a world, opportunities for causing harm to others become,
accordingly, more complex, multi-faceted and mystifying. Add to all this our more
sophisticated views as to the complex roles played by social, economic and psy-
chological factors in prompting human behaviour.
In light of such factors, it is not unreasonable to suppose that we are moving

away from a firm belief in the justice of holding the individual solely responsible
for the costs he "voluntarily" imposes on others, towards a scheme in which liability
is more widely shared. To the extent that one believes that voluntary human
behaviour is often prompted as much by a complex array of social and economic
factors as by individual choice, it becomes more and more plausible to believe that
the costs of that behaviour should be absorbed by someone other than the individ-
ual—perhaps by society as a whole. And once one begins to view costs as more
properly borne by society, one begins to see the appeal of making sure that this
is done in the most efficient manner possible. Such a change in perspective might
lead one to move, perhaps begrudgingly and in a step by step manner, away from
corrective justice and towards the principles and goals of economic theories of tort
law. And there is some reason to think that this is precisely what is occurring in
many western democracies. The introduction into tort law of "punitive damages,"
and the movement in some jurisdictions towards "no fault schemes" and varying
degrees of strict liability, are not easily reconciled with corrective justice and the
concepts in terms of which it is understood. But they are much more easily under-
stood in terms of the story just told, about the changing conditions of society and
changing beliefs concerning the appropriateness of holding individuals solely
accountable for their harmful conduct. Perhaps, in short, we are moving from cor-
rective justice towards economic efficiency.
I wish to stress that the point of the above reflections is not to defend the moral
worthiness of the economic theory. Nor is it to suggest that tort law actually is best
modelled on that theory. Rather it is to raise the possibility that tort law is in a pro-
cess of transition, from a scheme embodying the principle of corrective justice and
all that entails (bilateralism, costs to be borne by the offending party, and so on),
towards one which views (at least some) social relations as properly regulated by
principles of economic efficiency. What would one expect to find when one set
out to investigate the "nature" of tort law if what I have been suggesting turned
out to be true? Among other things, one would expect to find elements of the old
practice, viz., a corrective justice practice, conceptually at odds with the new ele-
ments. There would be a kind of "dissonance" between the old ways of conceiving
the practice and its evolving patterns of inference. Eventually, the concepts and
patterns of inference would (or might not, if we came to second guess the view
we were coming to embrace) "catch up" with the evolving practice. But until such
time as it did, one would expect to see the kinds of incongruence between the "core"
of tort law and the principles of the economic theory that Coleman uses to such
great advantage in disputing the claim that the latter provides the best explanation
or constructive interpretation of the former. It is only in ignoring the possibility
of a practice in transition that the advantage can be so easily seized.

9. Inclusive Legal Positivism

Part II of The Practice of Principle includes Coleman's latest thoughts on general

jurisprudence, i.e., the theory of law and legality as exemplified by Hart's The
Concept of Law and Dworkin's Law's Empire. In this extremely interesting and

provocative section of the book, Coleman attempts to explain and defend further
the fundamental commitments of Legal Positivism. These commitments include
the "Separation Thesis," viz., that law and morality are conceptually distinct from
one another, as well as the "Social Thesis," viz., that law is, fundamentally, a con-
ventional social practice. Positivists differ on how they interpret these two funda-
mental commitments. Some interpret the Separation Thesis as ruling out the
possibility that legality could in any way depend on morality. These "Exclusive
Positivists" reject the defining claim of "Inclusive Positivism," that the legality of
a norm (e.g., a statute) can, in some particular system(s) of law, depend on con-
formity with moral principles. According to Inclusive Positivists, this can be so
just so long as the dependence is licenced by a conventional rule of recognition.
In Part II Coleman sets out to defend his particular brand of Inclusive Positivism
against the Exclusive Positivists, Scott Shapiro and Joseph Raz. According to Raz,
law's purported claim to authority is inconsistent with the Inclusive Positivist's ren-
dering of the Separation Thesis. Shapiro, for his part, argues that Inclusive
Positivism is inconsistent with the Practical Difference Thesis. This is the claim
that, in order to be law, legal pronouncements must in principle be capable of mak-
ing a practical difference in the structure or content of deliberation and action. In
Shapiro's view, permitting the legality of a norm to depend on its conformity with
moral principle, violates the Practical Difference Thesis. It robs the norm of its
distinctive normativity, viz., of its capacity to provide authoritative legal guidance.
Coleman spends considerable time attempting to show that the Inclusive Positivist's
rendering of the Separation Thesis is compatible both with Raz's theory of authority
and with the Practical Difference Thesis.
The second defining commitment of legal positivism is "the Social Thesis," viz.,
that law is, fundamentally, a social practice. The Social Thesis is interpreted by
most positivists as a commitment to the existence in all legal systems of a Haitian
rule of recognition. There are, according to these positivists, no conditions of valid-
ity which in some way exist independently of the rule of recognition, in, e.g., the
requirements of a transcendent natural law. Coleman fully accepts the Social Thesis
and its interpretation in terms of Hart's rule of recognition. One of his aims is to
explain and defend his particular version of the Social Thesis which he refers to
as "the Conventionality Thesis," the claim that legal authority is made possible by
a specific kind of conventional social practice.
In defending the Conventionality Thesis, Coleman is particularly concerned to
answer the charge levelled long ago by Ronald Dworkin, that the supposed con-
ventionality of law is incompatible with the inherently controversial nature of its
grounds. In other words, if the legality of a norm were a matter of its conformity
with conditions contained within a conventional rule of recognition, then we would
not see the deep, theoretical disagreement about the grounds of legality that
Dworkin claims is clearly evident in developed legal systems.12 Explaining how
the Conventionality Thesis is consistent with such deep, theoretical disagreement

12. See Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978)
chs. 2, 3.

has long been one of Coleman's main projects. Among his answers to Dworkin
has been to distinguish between the content of a rule and its existence conditions.
So long as there is nothing more than peripheral disagreement over what the relevant
conditions of legality are, the Conventionality Thesis is fully consistent with deep
disagreement about their content or about whether particular norms satisfy those
conditions. Coleman rehearses these arguments in Part II, but takes important new
steps in defending the Conventionality Thesis. For example, he develops the impor-
tant point that Dworkin's arguments falsely assume that the content of a conven-
tional rule is fixed by nothing more than the converging behaviour of those who
follow it. If this were so, then it is easy to see why deep disagreements about the
scope of a conventional rule of recognition would not be possible. If there is dis-
agreement about the criteria of validity set by a rule of recognition, then there can
be no converging behaviour in applying those criteria, and thus no rule determining
the conditions of legal validity. But if the convergent behaviour necessary for the
existence of a conventional rule does not determine its content or the scope of the
obligations the rule purports to impose, then there can be a conventional rule whose
content and scope are subject to deep disagreement. Yet if converging behaviour
does not determine the content of a conventional rule, what does?
In Coleman's (pragmatist) view is a "shared grasp or understanding of the rule
that is reflected both in convergent behaviour and in broadly shared understandings
of the rule's application to a range of paradigms and hypotheticals" (81). This pro-
vides, Coleman suggests, a "framework of interaction," "a system of interdependent
and reciprocal expectation" (94), which is in no way exhausted by converging
behaviour. All this will be seen, Coleman argues, if we recognize what Dworkin
(and to a degree Hart) failed to grasp: That a conventional rule like the rule of recog-
nition is not identical with the behaviour which establishes its existence. "The rule
of recognition is a rule, and thus an abstract, propositional entity" (77).
Distinguishing between a rule and the conventional practice which brings it into
existence is crucial to a successful defence against Dworkin's challenge to the
Conventionality Thesis. It is to Coleman's credit that he highlights so clearly and
forcefully this important, but often overlooked, point about the nature of conven-
tional rules.
So the rule of recognition establishes a framework of interaction among officials
in applying criteria of validity. But we are still lacking an account of why and how
this particular framework can create an obligation to apply particular criteria in
establishing legal validity. The solution, Coleman believes, is found in Bratman's
notion of a "Shared Co-operative Activity (SCA)" (96). The "practice of officials
of evaluating conduct in the light of rules that satisfy certain criteria of legality is
an instance of SCA" (96). According to Bratman, SCAs have three characteristics:
(I) Mutual responsiveness (each participant tries to guide his behaviour with an
eye towards the behaviour of the others, knowing that the latter does likewise); (2)
Commitment to the joint activity (each participant has, for any number of reasons,
a commitment to the joint activity and their mutual responsiveness is in pursuit
of this commitment); (3) Commitment to mutual support (each participant supports
the efforts of the others to be mutually responsive). Such activities, Coleman argues,

"provide frameworks for bargaining" (99) about how to go on in the shared co-
operative activity of applying rules valid according to accepted criteria of legality.
An important implication of conceiving of rules of recognition as SCAs is that
we are provided with an explanation of how conventional rules of recognition can
both impose obligations and be subject to ongoing dispute about their proper scope.

The rules are the result of ongoing negotiations. Thus there may well be disagreement
about their content—disagreement, moreover, that is substantive and important, and
which, given the framework, might well be settled by an appeal to substantive moral
argument about how one ought to proceed, and that may invite discussion about the
point of the practice. (99)

Thus, Legal Positivism "is compatible with everything Dworkin says about the pos-
sibility and character of disagreement in legal argument" (100).

10. SCAs and Rules of Adjudication

Coleman is correct in conceiving of the rule of recognition as something like

an SCA which is both responsive to behavioural patterns but in no way identical
with or exhausted by the relevant converging behaviour. But I would like to suggest
that he may have underestimated its usefulness in addressing concerns expressed
by some legal theorists about the value of conceptual explanation in legal theory.
Brian Leiter has argued that analytic jurisprudence of the kind practised by Coleman
provides, at best, an account of what it is for a norm to be an authoritative legal
norm. But this gets us only part way towards an adequate understanding of law.
Such an account of law must be supplemented by a theory of adjudication which
explains how to convert authoritative legal norms, viz., "adjudicatory inputs," into
"legal adjudicatory content." "A theory of adjudication seeks to identify the pro-
cedural (and possibly also substantive) norms that, if correcdy followed by judges,
will yield all and only those outcomes that are warranted by the set of authoritative
legal standards binding on them" (211). Leiter's claim is that no amount of con-
ceptual analytic theory about adjudication will help judges determine the outcomes
warranted by the norms valid by the rule of recognition.

Any number of inconsistent outputs are compatible with the set of adjudicatory inputs,
and there are a large number of interpretive principles or ways of organizing the inputs
that are themselves internally consistent and that warrant different outcomes. There
are no unique interpretive principles and there is no philosophically respectable way
of picking one out as correct. (213)

Hence, analytic jurisprudence must be replaced by a kind of "naturalized jurispru-

dence" where conceptual analysis is replaced by the methodology of the social sci-
ences. We must discover empirically die interpretive strategies judges tend to
employ in deciding particular kinds of cases in particular contexts.

We should turn away from philosophy to an appropriate social-scientific inquiry—one

that looks to uncovering lawlike regularities in decision making, or one which seeks
to identify which norms, if any, are internal to the practice of adjudication. Leiter

does not deny that there may be such norms—only that philosophy has a role to play
in determining what they are or in justifying them. (213)
Coleman's response to Leiter is to acknowledge, as any good positivist would,
mat there can be no "positivist theory of adjudication," if by that phrase one means
a universally valid set of rules or principles of adjudication which, when applied
to the authoritative legal norms of any particular legal system, converts these "adju-
dicatory inputs" into "adjudicatory outputs," i.e., determines which decisions the
judges of that system are bound to make as a matter of law. "Positivism entails the
view that we cannot determine adjudicatory content a priori" (215). True enough,
but how is that content determined? And is there nothing at all that a positivist can
say about adjudication? Unfortunately, Coleman says relatively little in answer to
these questions—which is surprising given that the elements of a more than sat-
isfactory answer are readily at hand.
Consider an analogous charge against the positivist theory of legality: Positivism
and analytic legal theory must be replaced by sociology of law for the reason that
no amount of a prior reflection on the nature of law will tell us what counts as the
appropriate criteria of legality of any particular legal system; these criteria vary
from one system to the next and can be discovered only by way of social scientific
methods. The obvious reply to this charge would be to cite the fact that the kind
of variability noted is precisely what one would expect given the conventional
nature of the rule of recognition. The positivist's theory of legality tells us that there
must, as a matter of conceptual necessity, be a conventional rule of recognition for
there to be law. But it also tells us that no amount of a priori, conceptual reflection
will help us to determine the content of that rule for any particular legal system.
To determine the actual content of a rule of recognition, one would need the meth-
ods of the social sciences because the content of a rule of recognition is, as Hart
pointed out long ago, a matter of contingent social fact. Now apply all this to
Leiter's claim that the norms of adjudication cannot be discovered a priori. This
fact poses little problem for positivism since
that is just what a positivist theory of adjudicatory content already tells us: that the
"function" that takes as its inputs "official legal pronouncements" and gives as its
outputs "decisions in particular cases as a matter of law" will depend on the particular
practices of different legal systems. Positivism entails the view that we cannot deter-
mine adjudicatory content a priori. (215)
It's a pity that Coleman did not push this point a bit further and consider whether
the variable adjudicatory "function(s)" he mentions might not be conceived and
explained along the same lines as he uses in explaining the conventionally based
rule of recognition. Positivists have always tended to ignore the centrality of rules
of adjudication in their theoretical accounts of law.11 But the fact remains, as

13. This is a point I tried to drive home in Inclusive Legal Positivism where I provided some pre-
liminary thoughts on the different "adjudicatory functions" applied by judges in discerning the
requirements of valid laws. These adjudicatory functions are sensitive to what 1 termed that vary-
ing "institutional forces" of laws and the corresponding adjudicative powers different judges
have to change, re-interpret, or in some other way avoid the force of, what would otherwise be
binding law.

Coleman seems here to acknowledge, that they are at least as important to law as
rules of recognition. Determining that L is a valid law in system,^, is an important
step towards legal guidance—towards determining one's legal obligations in S. But
it is only thefirststep since one will, in some way or other, have to interpret and/or
apply L in order to discern its requirements. Yet as many have noted, practices of
interpretation seem to vary from one system to the next, from one period to the
next, and possibly from one judge or one level of court to the next. How does one
account for these facts? Dworkin would argue that judges differ in their interpretive
practices because they are all engaged in constructive interpretations of pre-inter-
pretive, black-letter law, and constructive interpretations are things upon which rea-
sonable people typically disagree. But a positivist who wishes to maintain the Social
Thesis, viz., that law is fundamentally a matter of conventional social practice, will
be uncomfortable pursuing any such route. He will, however, feel completely com-
fortable saying that the determination of "legal outputs" is governed by conven-
tional rules of adjudication. Of course a positivist who claims that rules of
adjudication are instances of conventional social practices among judges (and per-
haps other officials) will be faced with the same difficulties which have for many
years plagued defenders of the rule of recognition: How do we to account for deep
disagreements among judges about the appropriate rules to be followed? There
seems to be at least as much, if not more, controversy and disagreement among
judges as to the strategies appropriate to legal interpretation as there are with respect
to the criteria they are required to apply in determining legal validity. It is a pity
that Coleman did not consider whether, and if so to what extent, these rules of adju-
dication might not be conceived as SCAs. Had he done so, he might have had a
stronger response to Leiter, and a much richer theory of law.

11.The Authority of Law

One of most powerful challenges to Inclusive Positivism has come from Joseph
Raz, who claims that it is in the very nature of a legal system that it claims justified
practical authority over a population. If this claim is to be intelligible, a legal system
must be the kind of thing that can exercise authority. But what is it to have author-
ity? In answer, Raz develops the "service conception of authority."14 In deciding
what to do, we often appeal to reasons for doing one thing rather than another.
Typically, these reasons are either prudential or moral. Raz calls these "first-order
reasons." In many situations, we weigh the applicablefirst-orderreasons against
each other and decide based on the balance of reasons. Sometimes, however, reason
suggests that we should not ourselves attempt to act directly on the balance of first-
order reasons. This is where authority comes in. Sometimes right reason dictates
that we act in accordance with a second-order reason which reflects someone else's
judgment about the relevantfirst-orderreasons. Often the relevant second-order
reason will be a directive issued by an authority, say from a financial management
firm holding one's assets, as it were, in a blind trust. On Raz's account, Y is justified

14. See Joseph Raz, "Authority and Justification" (1985) 14 Phil.& Publ. Affairs 3; "Authority, Law
and Morality" (1985) 68 The Monist 295.

(normally) in accepting X's directives as authoritative when Y is more likely to act

in accordance with right reason if she follows X's directive(s) than if she herself
attempts to act on the balance offirst-orderreasons. Authority provides a kind of
second-order "exclusionary reason," viz., a reason which excludes, and substitutes
for, the relevant first-order reasons. In Raz's view, it is the normal role of an author-
ity to provide this service, viz., to issue such second-order reasons reflecting the
proper balance of first-order reasons. It follows furthermore that if the law is to
be capable of having the authority it necessarily claims, then its directives must
be second-order reasons intended to replace the first-order reasons which apply
to its citizens.
Now comes a crucial step in Raz's argument against Inclusive Positivism. If
authoritative legal directives are to serve their role in guiding us on the path to right
reason, their identification and interpretation cannot depend on our having to con-
sider thefirst-orderreasons they are meant to replace. But this is precisely what
happens, Raz thinks, if we accept Inclusive Legal Positivism. A statute, as a second-
order, authoritative directive is meant to replace whatever reasons of prudence and
morality apply to us in the situations over which the directive governs. But if, e.g.,
a statute's identity as a valid legal directive depends on its conformity with a moral
principle like fairness—a moral reason—then its identity as an authoritative direc-
tive will depend on the very reasons it was meant to exclude and replace. We will
have to deliberate on at least some of thosefirst-orderreasons in order to determine
whether the statute is valid and therefore authoritative. But if so, then we might
just as well have dispensed with the statute altogether and acted instead on the rel-
evant first-order reasons, including fairness. Hence, Raz concludes, Inclusive
Positivism is incompatible with the authority of law.15
Inclusive Positivists have mounted vigorous, and multi-faceted replies to Raz's
authority argument. Both Coleman and I have pointed out, for example, that the
moral reasons replaced by a legal directive need not be identical with the moral
reasons used to challenge its validity.'6 In its landmark abortion case, the Canadian
Supreme Court declared Canadian Criminal Code rules governing abortions uncon-
stitutional because they violated the moralrightsto procedural fairness guaranteed
by the Charter." But whatever thefirst-ordermoral reasons underlying those abor-
tion rules might have been (e.g., a right to life versus rights to bodily integrity and
autonomy), they were not reasons of procedural fairness. Coleman further attempts
to meet Raz's challenge by distinguishing between two functions of a rule of recog-
nition: an identification function and a validation function, suggesting that Raz's
authority argument requires only that the rules for identifying valid law make no
reference to excluded moral reasons.'8 Since a rule of recognition is seldom used
by anyone, except judges, actually to identify valid laws, the fact that it might

15. Ibid.
16. See Jules L. Coleman, "Incorporationism, Conventionality, and the Practical Difference Thesis"
(1998) 4 Legal Theory 381; Waluchow, supra note 6 at 133-40; Wil Waluchow, "Authority and
the Practical Difference Thesis: A Defense of Inclusive Legal Positivism" (2000) 6 Legal Theory
45.
17. R. v. Morgentaler, (1988) 1 S.C.R. 30.
18. See e.g., Jules Coleman, "Authority and Practical Reason" in Robert P. George, ed., The Autonomy
of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996).

require appeal to excluded first-order reasons poses no threat to the law's authority.
So long as there is, in principle, a way of identifying the law without appealing
to the excluded first-order reasons, law's capacity to be an authority is preserved,
at least for everyone but the judges who actually apply the Rule of Recognition
in their practical deliberations about cases. Furthermore, it is possible to be guided
by that law in the way demanded by the Practical Difference Thesis. One can be
guided by a law whose validity depends on conformity with excluded moral prin-
ciples, so long as it is possible, in principle, for one to identify that valid law without
appeal to those excluded moral principles.
But if one does not use the rule of recognition itself to identify the laws valid
under it, how can one identify them? In Coleman's view, vahd law can, in principle,
be identified in any number of ways. For instance, one can ask a lawyer well versed
in the law. Indeed, one can ask anyone at all who happens to be able to discern
the requirements of the rule of recognition and determine the rules it validates. If
the well-versed lawyer is able to tell me what the valid rules are according to the
rule of recognition, then I can identify the law without resorting to the moral prin-
ciples its purported authority excludes from my consideration. And if I can so iden-
tify the law, then it can guide me in the manner of an authoritative directive. I can
discern the law's demands without in any way considering the excluded first-order
reasons upon whom its validity depends.
But what about the well-versed lawyer? His ability to identify the law for me,
means that it can serve for me as a practical authority in the manner demanded by
Raz (and Shapiro). But it cannot serve this function for the well-versed lawyer.
And it's reasonable to think that if the law is to be the kind of thing that can always
be identified independently of moral argument, then it ought to be so identifiable
by everyone under its authority—including the well-versed lawyer.
At this point, Coleman makes an intriguing move the power of which, I believe,
he fails to appreciate fully. We are introduced to "the Swede" who, like the well-
versed lawyer, is fully apprised of the requirements of the relevant rule of recog-
nition. This is a rule which establishes conformity with an "excluded" moral
principle as a necessary or sufficient condition of legality. This rule of recognition,
R, establishes that purported law, L, (a second-order, exclusionary reason) is valid
only if it conforms with moral principle, MP (an excluded, first-order reason). The
Swede, over whom R and the laws it validates have absolutely no authority, is able
nonetheless to determine whether L conforms with MP and is therefore valid
according to R. She is also able to communicate the results of her determinations
to all those over whom L and R do have authority—namely us. And perhaps most
importantly, she can communicate these results in a way which does not require
us to deliberate about, or in any way consider, MP. She can say "L is valid accord-
ing to R" without even mentioning MP. The Swede's word serves to satisfy the
"identification function" necessary for legal authority even if the validation function
of/? involves appeal to MP. And so long as this possibility exists, the law remains
the kind of thing whose content can, in principle, be discerned without appeal to
excluded, first-order reasons like MP. It is the kind of thing, then, which can be
authoritative.

Upon providing this ingenious defence against the claim that Inclusive Positivism
is inconsistent both with law's purported authority and with the Practical Difference
Thesis, Coleman considers an objection levelled by Scott Shapiro.
If the Swede determines which norms bear the mark of law ... or what the balance
of dependent reasons require ... by deliberating on the moral merits of a norm, then
the Swede—and not the rules valid under the rule of recognition—is the real practical
authority. It is the Swede who mediates between reasons and persons, or who adju-
dicates between conflicting standards or norms; and that is what it means to be a prac-
tical authority. It is not the fact that a rule is "valid" under the rule of recognition
that makes it law, but, rather, the fact that such a rule is judged by the Swede to express
what the balance of reasons demands. The Swede, in other words, is not merely
reporting what the law is; she is determining what the law is. The law is what the
Swede says it is. (141-42)

Coleman's response is, in effect, to concede the force of Shapiro's objection and
to move on to defend a modified Practical Difference Thesis. Shapiro's claim is
that Positivism is committed to the thesis that any law, to be law, must be capable
of providing authoritative guidance about one's obligations under law. Coleman's
response is direct and to the point. The law may be the kind of institutional practice
which must be capable of providing the kind of guidance highlighted by Raz and/or
Shapiro, but it fails to follow that the same is true of each and every law. Coleman
goes on to develop this important point in some detail, outlining the various ways
in which morality and law interact with one another, each contributing towards the
guidance the other can provide. For example, the law often makes more concrete
the requirements of morality, and legal validity is sometimes dependent on con-
formity with moral norms. This is a very fruitful line of response to Shapiro and
Raz. But I would like to suggest another avenue which might also have been taken
in addressing Shapiro's objection head on.
We can begin by asking whether it is true, in the scenario contemplated by
Coleman, that "The law is what the Swede says it is." There is a sense in which
this is true. If the Swede has the insight (moral and otherwise) to determine the
requirements of R, and always gets things right, then it is true that the law is what-
ever the Swede says it is. She is, in these circumstances, an infallible epistemic
authority. She always knows the answer to the question: Which laws are valid
according to /?? But is she a practical authority in any sense which threatens the
claim that her word serves to identify but not validate law? I fail to see why this
must be so. The Swede does not mediate between the requirements of right reason
and those subject to the authority of law. Rather she mediates between the Rule
of Recognition, R, and those subject to its authority. She is not an authority on the
requirements of right reason (something the law must be if its claim to justified
authority is legitimate); rather she is an authority on the requirements of the rule
of recognition, and hence the law. And this remains so even if she must consult
the requirements of right reason in determining what the rule of recognition
requires. This might be thought to mark an insignificant difference, but I don't think
it does. Suppose that the Swede is always consulted about the requirements of the

Rule of Recognition, R. The fact remains that it is R which establishes the conditions
of legality, not the Swede. R's existence—past and future—is a function of its con-
tinued acceptance by legal officials as the appropriate source of legal validity. If
that acceptance among officials were to change, then R would change or cease to
exist. The Swede, we may suppose, has no say in all this. Her decisions, actions,
critical reflective attitude, and so on have no bearing whatsoever on its existence
and content. The most she can do is identify whether R has changed or ceased to
exist, but R remains a rule whose existence and content are outside the Swede's
control. She remains, therefore, a mere epistemic authority on its requirements.
It is conceivable, of course, that judges and officials might come to accept the
Swede's word as actually constituting the sole criterion for legal validity. They
would do this if they came to accept, as valid, whatever she decreed to be the law.
In this instance, she would indeed be the "real" practical authority, much like Rex
in Hart's primitive legal system. But my point is that this need not be the case. She
can remain an epistemic authority on the requirements of a rule of recognition
whose criteria make reference to factors other than the Swede's best judgment—and
which, importantly, remain outside her control. They remain outside her control
in the sense that she cannot change the rule of recognition or abandon it in favour
of an alternative. She can, in short, serve the required identification function without
thereby being converted, as Coleman seems to assume she must, into the "real prac-
tical authority."
Suppose, now, that we relax the condition that the Swede is an infallible epis-
temic authority and stipulate only that she is better able to discern the requirements
of R than anyone who is subject to R and the rules it validates. It is possible that
she gets things wrong (and we all know this), but the chances of this happening
on any particular occasion are less than the chance that you or I will fail in this
regard. That the Swede can serve as an epistemic authority without being converted
into a practical authority (in the troublesome sense) is perhaps even easier to see
in this scenario. If she is fallible, then the Swede can still serve as an epistemic
authority because we may yet be better off accepting her word than trying to puzzle
things out ourselves. But in this instance her word clearly does not determine what
the law is. There is a conceptual distance between what she reports and what is
truly the case. The two can diverge since she can, in some case or other, get things
wrong, unlikely as that might be, and even if we seldom, if ever, reject her judgment.
So she is clearly not a practical authority who makes law. Her word remains a (less
than fallible) report of what the Rule of Recognition, R, requires. Of course, if R,
and the legal rules it validates, are to serve as practical authorities, it must be true
(on Raz's account) that those subject to its (their) demands are more likely to act
in accordance with right reason if they follow it (or them) than if they try to act
directly on applicable first-order reasons. But this has nothing to do with the Swede
and her expertise. The law in this case functions as a practical authority, while the
Swede's authority remains epistemic.

12. Concluding Thoughts

There is much in The Practice of Principle that I have been unable to address.
Suffice it to say that anyone interested in the nature of legal theory, in the theoretical
explanation of tort law, or in the nature of Legal Positivism and what it has to say
about the role of morality in legal practice, will find much of value and interest
in Coleman's book. It is sophisticated in analysis, rich in detail, and a pleasure to
read.

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