Inclusive Legal Positivism and the Concept of Validity

Mathieu Carpentier
(Université Panthéon-Assas Paris II)

After almost forty years1, it seems that there is not much left to be said about the
Inclusive/Exclusive debate among legal positivists.
On the one hand, inclusive legal positivists do not seem to agree on many things. They
do not even agree on what Inclusive Legal Positivism (ILP) 2 is about. According to
Waluchow, ILP is more descriptively accurate and has a better explanatory power than his
exclusivist rival3. According to Coleman however, ILP’s success is predicated upon its
conceptual ability to better explain or interpret legal systems4. According to Himma, ILP is
better understood as a possible-worlds claim, that is, a claim about a mere logical possibility5.
So much for methodological coherence.
On the other hand, exclusive legal positivists spend too much of their time defending
some version of the so-called practical difference thesis, which one does not need to be a
legal positivist to endorse6 and with which many positivists would actually disagree.

1
Inclusive Legal Positivism – aka incorporationism or soft positivism – appeared on the jurisprudential stage in
the late seventies and early eighties in reaction to Dworkin’s early criticisms against legal positivism. The first
versions of it can be found in David Lyons, “Principles, Positivism and Legal Theory,” Yale Law Journal 87
(1977); Philip Soper, “Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute”, Michigan Law
Review 75 (1977); Jules Coleman, “Negative and Positive Positivism,” Journal of Legal Studies 11 (1982). Hart
endorsed a version of it in the Postcript to the second edition of the Concept of Law (H.L.A. Hart, The Concept
of Law (2nd ed., Oxford: Clarendon Press, 1994). Its main refinements were brought by (to name just a few)
Wilfred Waluchow, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994); Jules Coleman, The Practice of
Principle (Oxford: Oxford University Press, 2001); Matthew Kramer, Where Law and Morality Meet (Oxford:
Oxford University Press, 2003); Kenneth Himma, “Inclusive Legal Positivism,” in Oxford Handbook of
Jurisprudence and Legal Philosophy, ed. Jules Coleman and Scott Shapiro (Oxford: Oxford University Press,
2002). Inclusive Legal Positivism was subsequently imported into continental legal theory: see Jose Juan
Moreso, “In Defense of Inclusive Legal Positivism,” in The Legal-Ought, ed. Pierluigi Chiassoni (Turin:
Giappichelli, 2001); Vittorio Villa, “Inclusive Legal Positivism, Legal Interpretation and Value-Judgments,”
Ratio Juris 22 (2009).
2
Hereafter I will refer to Inclusive Legal Positivism as ILP and to Exclusive Legal Positivism as ELP.
3
Waluchow, Inclusive Legal Positivism, 84.
4
See Coleman, Practice of Principle, 109.
5
See Kenneth Himma, “The Logic of Showing Possibility Claims,” Revus 23 (2014).
6
Aquinas does actually endorse a version of it.
 My aim in this article is quite modest. I do not intend to settle this debate or take
sides in favor of one of the contestants, although it will soon be obvious that I do not think of
inclusive legal positivism as a viable program. I will rather focus on a particular concept, the
concept of validity and show that its use by proponents of ILP is confused.
This article will proceed in three parts. In Part I, I will show that ILP is a mixture of
two distinct theses, the Identification Thesis and the Validity Thesis, the first of which can
easily be disposed of. The Validity Thesis can be divided into two components, which are
dealt with respectively in Part II and Part III of this article.

I. Identification and Validity

A. The Two Theses

As Jules Coleman observed7, ILP and its Exclusivist rival can be illuminatingly
contrasted by introducing the modal operator “necessarily” into (what I call8) the Formula of
Standard Positivism, which reads like this: “In a given legal system, what the law is does not
depend its merits9 (moral or otherwise)”10. By shifting the position of the modal operator

7
Jules Coleman, “Second Thoughts and Other First Impressions,” in Analyzing Law, ed. Brian Bix (Oxford:
Clarendon Press, 1998), 265.
8
For Coleman, ILP and ELP are two interpretations of the Separability Thesis, of which he has given very
different formulations throughout the years. In “Negative and Positive Positivism”, he makes it a claim about
propositions of law: “The separability thesis is the claim that there exists at least one conceivable rule of
recognition (and therefore one possible legal system) that does not specify truth as a moral principle among the
truth conditions for any proposition of law” (Coleman, “Negative and Positive Positivism,” 171). Whereas ILP
stands by the interpretation of the Seprability Thesis given in the previous quotation, ELP interprets it otherwise:
ELP claims that there is not any rule of recognition that does specify truth as a moral principle among the truth
conditions for any proposition of law. There is however much to criticize in this formulation of the Separability
Thesis and in the Dworkinian notion of “proposition of law”, which (deliberately) confuses propositions about
the content of legal rules and propositions about their validity. In subsequent writing, Coleman has reduced the
Separabaility Thesis to a claim about legal validity (see Coleman, “Second Thoughts and Other First
Impressions,” 265). – In any case, the meaning, scope and relevance of the Separability thesis are a hotly debated
topic among positivists. See Joseph Raz, “About Morality and the Nature of Law,” American Journal of
Jurisprudence 48 (2003), 2-3; Joseph Raz, “The Argument from Justice or How Not to Reply to Legal
Positivism,” in Joseph Raz, The Authority of Law (2nd ed., Oxford: Oxford University Press, 2009), 314-319 ;
John Gardner, “Legal Positivism. 5½ Myths,” American Journal of Jurisprudence 46 (2001), 222-225; Leslie
Green, “Positivism and the Inseparability of Law and Morals,” New York University Law Review, 83 (2008). For
a defense of the “Separation of Law and Morals” slogan, see Matthew Kramer, “On the Separability of Law and
Morality,” Canadian Journal of Law and Jurisprudence 17 (2004). For an interesting critical analysis, see
Giorgio Pino, “Positivism, Legal Validity and the Separation of Law and Morals,” Ratio Juris 27 (2014). See
also on this Coleman himself: Jules Coleman, “Beyond the Separability Thesis,” Oxford Journal of Legal
Studies 27 (2007). – For all these reasons I prefer to use the somewhat vague notion of a Formula of Standard
Positivism.
9
This statement is deliberately imprecise, so as to conflate temporarily questions of identification and validity,
questions which I insist must be distinguished. In any case, many positivists use this imprecise formulation to
describe positivism. See, e.g., A. Marmor, Positive Law and Objective Values (Oxford: Oxford University Press,
2001), 49 (with the footnote) and 71.
through the use of internal and external negations, we get the two following restatements:
exclusive positivists claim what the law is necessarily does not depend on its merit – on what
the law ought two be; inclusive positivists claim that what the law is does not necessarily
depend on its merit – implying that it can be the case that it does11.
Now it seems to me that the Formula of Standard Positivism breaks down into two
separate claims, and so does ILP. They read as follows:

The Identification Thesis: The identification of the law’s content of does not
[necessarily] depend on the evaluation of its moral merit.

The Validity Thesis : The legal validity of a rule does not [necessarily] depend on its
moral merit.

By “content of the law” I mean quite generally the content of legal obligations and rights, i.e.
what the law requires from its subjects or allows them to do or to refrain from doing. By
“legal validity of a rule” I mean the property that makes a law out of a rule. While driving on
a highway I see a car involved in a serious accident: do I have a legal obligation to help the
driver (to the extent that it is possible to do so without putting my own life at risk) or am I
legally allowed to simply drive away? In order to answer this question, I will first have to
ascertain whether there is a valid legal rule addressing the matter, and what it is that this rule
requires. In order to do so, moral evaluation will not do. Or so Standard Positivism seems to
claim.
It seems to me that the Identification Thesis and the Validity Thesis ought to be
carefully distinguished, although many positivists, Inclusivists and Exclusivists alike, are
prone to talk in the same breath of the “identification of the existence and content” of the
law12. The determination of the content of a legal rule and the determination of its validity (or
“existence”) are two separate questions. According to Wil Waluchow, inclusive legal

10
However, I will only talk about law’s “moral” merit, putting aside other possible sources of “merit” (see on
this Gardner, “Legal Positivism,” 224)
11
It bears noting that from a formal point of view, this “implication” is a fallacy. From the fact that it is not
necessary that p, one may only infer that it is possible that non-p, since the two propositions are logically
equivalent. The proposition “it is not necessary that p” is logically compatible with the proposition “it is
impossible that p” since the former is implied by the latter (assuming the axiom D of modal logics is accepted).
It bears noting that Coleman does not commit this fallacy.
12
This phrase is omnipresent in the jurisprudential literature. See, among numerous other examples: on the
“Exclusivist” side, Joseph Raz, The Authority of Law (2nd ed., Oxford: Oxford University Press, 2009), 40; Scott
Shapiro, Legality (Campridge [Mass.]: Harvard University Press, 2011) 28; on the “Inclusivist Side”, Hart, The
Concept of Law, 269; Waluchow, Inclusive Legal Positivism, 82.
positivists claim that “the identification of a rule as valid within a legal system, a well as the
discernment of the rule’s content and how it bears on a legal case, can depend on moral
factors”13. To be fair, Waluchow does distinguish14 these two claims, and so does (quite
extensively indeed) Jules Coleman 15 . But they are easily confused with each other by
inclusive legal positivists.
To illustrate this point let us consider the somewhat metaphoric notion of
“incorporation”, which has two meanings. On the first meaning, which I call Epistemic
Incorporation16, a moral norm is “incorporated” if it referred to in a source-based rule (or
rather rule-formulation); on the second one, which I call Semantic Incorporation, a moral
norm is “incorporated” when it is made valid under law by the rule of recognition on the sole
basis of its moral merit, without any traceable source.
Let us begin with the first meaning, that is, Epistemic Incorporation. Many rule-
formulations use moral concepts, whether thick or thin:

“Any male person who, in public or private, commits “ (…) any act of gross indecency
with another male person shall be guilty of a misdemeanor” (Criminal Law
Amendment Act 1885, s. 11, repealed by the Sexual Offences Act 1967, s. 1);

“A cause [of contract] is unlawful where (…) it is contrary to public morals” (French
Civil Code, Art. 1133)17;

“Human dignity shall be inviolable. To respect and protect it shall be the duty of all
state authority” (Basic Law for the Federal Republic of Germany, Art. 1.1).

It seems that in order to ascertain what the law requires – what kind of acts one is allowed to
engage in with another man; how to draft a particular contract; what kind of behavior is
prohibited to a particular German official – one will have to resort to moral evaluation. Or so
ILP’s Identification Thesis claims. This claim is often made by pointing out that in this sort of
cases, the law “incorporates” the relevant moral norms, such as the moral norm that one

13
Waluchow, Inclusive Legal Positivism, 82 (emphasis added).
14
See Waluchow, Inclusive Legal Positivism, 76
15
See Coleman, Practice of Principle, 128.
16
See Coleman’s distinction between a semantic and an epistemic notion of the rule of recognition (Coleman,
“Negative and Positive Positivism,” 141). My own distinction is different, since what I call “Epistemic
Incorporation” is not about the rule of recognition at all. On the other hand, what I call “Semantic Incorporation”
is clearly about the rule of recognition.
17
After more than two hundred years of existence, this article has been recently repealed in the process of a
sweeping reform of the law of obligations, but it is still in force until the new Civil code enters into force on
October 1st, 2016. See Ordonnance n° 2016-131 du 10 février 2016 portant réforme du droit des contrats, du
régime général et de la preuve des obligations, Art. 1.
should refrain from grossly indecent acts or violating another human being’s dignity. Here,
“incorporation” means that in order to ascertain what these legal statements mean and what
kind of duties and rights they prescribe, one will have to resort to the consideration of the
relevant moral norms. As I said, I will call this Epistemic Incorporation.
Epistemic Incorporation should not been confused with the absurd claim that,
whenever a rule uses moral concepts, the relevant moral norms are hereby made valid legal
norms of the system. Indeed there is no doubt that the examples cited above are (or, in the
case of the first example, were) valid legal rules within their respective legal systems; and to
ascertain whether they are valid or not, one will have to look for their respective sources
(statutes, Constitution, etc.) and not for their moral merit. There is no need to conceive the
relevant moral norms they refer to as legally valid norms identified as such by the rule of
recognition. What ILP’s Identification Thesis aims to show is an epistemic claim, viz. the
claim that one cannot identify the content of these legal rules without resorting to moral
evaluation, i.e. to the relevant moral norms; on this basis there is no need to claim that those
relevant moral norms, which apply to us anyway, are also legal rules, thus duplicating the
existent source-based legal rules.
There is another meaning of “incorporation”, which I call Semantic Incorporation. It
deals with norms that, contrary to the examples above, are not source-based, but are
“incorporated” into the law by the rule of recognition on the sole basis of their moral merit.
This corresponds to what is generally called the Sufficiency Component of ILP’s Validity
Thesis18. On which see infra Part III.
It is therefore necessary to distinguish ILP’s Identification and Validity Theses. Few
writers defend almost exclusively the former: such is the case of Moreso19 and more recently
(and somewhat surprisingly) of Coleman. After having devoted lengthy developments in The
Practice of Principle to what he calls criteria of legality, that is, to the Validity Thesis,
Coleman has said in a recent article that criteria of legality were of no theoretical interest
whatsoever, and that ILP had to be understood as an Identification Thesis20. Most writers

18
This is why Matthew Kramer calls “Incorporationism” the Sufficiency Component and uses “Inclusive Legal
Positivism” to refer only to the Necessity Component (see Kramer, Where Law and Morality Meet, 2). This
terminological choice can be justified insofar as “Incorporationism” has a clear Colemanian flavor, and Coleman
has been a longtime partisan of the Sufficiency Component (see Coleman, Practice of Principle, 128).
19
See e.g. Jose Juan Moreso, “Legal Defeasibility and the Connection Between Law and Morality,” in Jordi
Ferrer Beltran and Giovanni Battista Ratti, The Logic of Legal Requirements (Oxford: Oxford University Press,
2012).
20
See Jules Coleman, “Beyond Inclusive Legal Positivism,” Ratio Juris 22 (2009): 384. One has to distinguish
Coleman the Younger and Coleman the Elder – although, contrary to dynasties of painters, Coleman the
Younger and Coleman the Elder are the same person (under any reasonable theory of personal identity) and the
defend mainly the latter, and sometimes both Theses – prominently Waluchow, Kramer,
Himma and Coleman.

B. Disposing of the Identification Thesis

In what follows, I will deal only with ILP’s Validity Thesis. I have quite a simple
reason to do so: ILP’s Identification Thesis is a non-issue. If you ask me what the content of
Article 1.1 GG is and what it requires, I shall answer: “Article 1.1. of the Grundgesetz
stipulates that human dignity shall be inviolable and that to respect and protect it shall be the
duty of all state authority”. To do so, I will not have recourse to any form of moral evaluation;
I shall only exercise my linguistic competence. Indeed, this does not tell you what kind of
concrete actions or behavior it requires or prohibits. It does not tell you how to apply Article
1.1. And it is plain that in order to determine what counts as an infringement on human
dignity, a judge will use a form of moral evaluation. But this is by no means problematic, and
an Exclusive Legal Positivist may accommodate it at no cost. It is not even necessary to resort
to Raz’s somewhat extravagant (or, as Timothy Endicott calls it, “surprising”) claim that
whenever a rule uses a moral concept, such as in the case of a rule forbidding immoral
contracts, it creates a gap in the law21 – the judge being therefore required to exercise
discretion.
One must distinguish, as Raz himself (!) did in the same article, between pure legal
statements and applied legal statements. Pure legal statements are true “in virtue of that or
other laws alone”; applied statements are true “because of the existence of the laws and of
other facts, such as the making of contracts, wills, the commission of offences”, and so on22.
A pure legal statement states what the rule requires in general, that, what class of cases is
regulated and what legal consequence is attached to it. If, by identifying the law’s content, we
mean making a pure legal statement, no form of evaluation is required. Things are different
with applied statements.
There is no doubt that there is often a gap between pure and applied statements:
knowing the former will sometimes not be enough for you to be able to make an applied
statement, even if you know all the relevant rules and facts. This is because legal rules are
often indeterminate, due to vagueness and open texture. And we should follow Timothy

Younger actually came before the Elder. In what follows, I shall focus mostly on Coleman the Younger, by
whom I mean Jules “Criteria of Legality” Coleman.
21
Raz, The Authority of Law, p. 75.
22
Raz, The Authority of Law, p. 62
Endicott and acknowledge that moral concepts are vague or open-textured23, and there is not
much of a difference – in this respect – between Article 1133 of the French Civil Code24 and
the good old Vehicle-in-the-Park rule. If you and I sign a contract stipulating that I grant you
permission to use me as your sexual slave, this is a clear case of a contract that is “contrary to
public morals”. And of course there are many penumbral cases where it is much disputed
whether or this or that particular contract is contrary to public morals. So rules using moral
concepts, like every other rule-formulation using vague terms, yield hard cases, in which
judges and other law-applying organs will indeed have to create the law, rather than apply it.
Nothing here is problematic for ELP.
It may be objected, however, that, contrary to “vehicle”, the identification of easy
cases of “contrary to public morals” or “gross indecency” will always rely on moral
evaluation. The Identification Thesis has then to be reinterpreted as a thesis about easy cases
of application of moral concepts embedded in legal rules. In the case of sexual slavery
mentioned earlier, the judge who voids the contract both straightforwardly applies the law and
morally evaluates the content of the contract. She will not create law, since the case at hand is
a clear instance of infringement of dignity; but she will still morally evaluate the facts, since
applying moral concepts means ascribing moral properties to non-moral facts, and ascribing
such properties amounts to morally evaluate those facts. An easy evaluation is still an
evaluation. If this is the case, then ILP’s Identification Thesis poses a real problem for ELP’s
central tenets. If anything, Endicott’s point about moral concepts being vague strengthens,
rather than weakens, ILP’s Identification Thesis25.
Not so. First I cannot stress enough that content-identification of a rule (that is, the
interpretation of a rule-formulation) is conceptually different from concept-application (that

23
Timothy Endicott, “Raz on Gaps: The Surprising Part,” in Rights, Culture and the Law. Themes from the
Legal and Political Philosophy of Joseph Raz, ed. Lukas Meyer, Stanley Paulson and Thomas Pogge (Oxford:
Oxford University Press, 2003). Danny Priel takes another road. He says that the concepts identified as « moral »
concepts are in fact legal ones. See Danny Priel,”Farewell to the Exclusive-Inclusive Debate,” Oxford Journal of
Legal Studies 25 (2005). It bears noting that according to Priel, positivism is primarily a thesis about content, not
validity (see Danny Priel, “Trouble for Legal Positivism”, Legal Theory, 12 (2006)). I would clearly beg to
differ.
24
I will not use Article 1.1 GG as an example, because I admit that constitutional clauses are somewhat specific,
since constitutional concepts are not just vague, but more radically indeterminate. As far as constitutional
concepts go, Raz’s extravagant thesis is not so extravagant. But this is a topic for another article.
25
Hence Endicott’s “maybe-I-am-a-soft-positivist-after-all” confession at the end of his paper (see Endicott,
“Raz on Gaps,” 115). Endicott however readily adds that “at most we have found reasons for disagreeing with
Raz about the consequences of the sources thesis, not reasons to agree with the incorporation thesis: there is a
gap in the law when the law appeals to moral considerations, but it is a gap that confers discretion only in
borderline cases.” I must admit that I find this very confusing: I thought that “gaps” occurred only when there
was a borderline case in the first place.
is, subsumption)26. But for the sake of the argument, let us reframe the Identification Thesis as
a claim about law-application, and not about rule-identification. Be that as it may, it is still a
very weak claim. Concept-application, in law as much as in life, is a thoroughly value-laden
activity, even when it is simple and easy. Even a straightforward application of the rules of
language requires evaluation at some point. The crucial point here is that what makes this
application straightforward – and what counts as a criterion of its correctness –, is the
acknowledgement of, and deferral to, a collectively shared evaluation, that is, an evaluation
shared by the community of speakers. You cannot say, “LeBron James is tall” without
assessing his height; and of course you cannot say, “LeBron James is not tall” without
violating the conventional rules governing the proper use of “tall”. There is evaluation
involved in the process, but this evaluation is by all means a weak one.
Let me take an example. Recall the Criminal Law Amendment Act of 1885, and its
prohibition of acts of “gross indecency”. In the middle of XXth century, a consensual
homosexual relationship would be a clear case of “gross indecency”. Let us imagine that such
a case is brought before a judge who happens to be a hardcore liberal devotee of John Stuart
Mill. Of course, in her own assessment of the case, the judge would never think of the two
men’s behavior as grossly indecent; but, unless she is to break the law, she will declare them
guilty. In applying the concept of gross indecency she has not relied on her own
straightforward moral evaluation of the case, but she has only made a proper use of the rules
of language, and this use certainly involved a minimal form of evaluation.
There is nothing specific to moral concepts in this respect. Deferring to a shared
evaluation embedded in the conventional rules of language is a success condition of the
application of all evaluative concepts, and maybe of certain non-evaluative concepts as well.
Even if we reframe the Identification Thesis as a claim about rule-application, it does not
warrant the conclusion that the use of moral concepts in the law is a threat to standard
positivism or even to ELP. If it were, the use of non-moral evaluative concepts, such as “big”
or “red” would be a threat of the same kind, and so would the use of a whole bunch of non-
evaluative concepts as well.
In any case, rather than false, the Identification Thesis is a non-issue, since positivism
has never been a claim about rule-application in the first place.

26
See on this Riccardo Guastini, “Rule-Scepticism Restated,” Oxford Studies of Philosophy of Law 1 (2011):
140.
 I will therefore focus mainly on ILP’s Validity Thesis. Before going on to do so, I
have to admit that the Validity Thesis does involve a problem of content-identification too.
Let us take the example of the Eighth Amendment to the American Constitution and its notion
of “cruel and unusual punishment”. I will admit for now that this rule sets conditions of
validity for other rules (be it statutes or administrative regulations): a statute making stoning
or flogging a proper punishment is not valid under the Eighth Amendment. The point
emphasized by ILP’s Validity Thesis, more precisely its Necessity Component, is that in
order to determine whether this statute is valid or not, one will have to resort to moral
evaluation. But it is obvious that in order to do so, one will have to previously ascertain the
content of the Eighth Amendment itself and answered the question of what counts as “cruel”.
However, as far as the Validity Thesis is concerned, what matters here is that the validity of
the statutory provision itself depends on a moral evaluation of the statute itself and not only of
the content of the Eighth Amendment.

C. Sufficiency and Necessity

It has often been observed that ILP’s Validity Thesis breaks down into two distinct
components: the Necessity Component and the Sufficiency Component27. According to the
former, it is possible, but not necessary, that, in some legal systems, moral criteria feature
among the necessary28 conditions of legal validity: in short, a rule’s morality may be a
necessary condition of its legal validity. According to the latter, it is possible, but not
necessary, that, in some legal systems, moral criteria feature among the sufficient conditions
of legal validity: in short, a rule’s morality may be a sufficient condition of its legal validity.
Those two components have to be studied separately since they entail very different
consequences.
The Necessity Component claims that in addition to positivist orthodox criteria of
validity, that is social sources, it is possible that either the rule of recognition or some positive
rules (such as constitutional rules) acknowledge an additional necessary condition that a rule
must meet if it is to be legally valid at all. By contraposition, the immorality of a rule may be

27
I borrow these phrases from Himma. See Himma, “Inclusive Legal Positivism”, 136. For related ideas, see
also Kramer, Where Law and Morality Meet, 2; Marmor, Positive Law and Objective Values, 61-62; Larry
Alexander and Fredeick Schauer, “Law’s Limited Domain Confronts Morality’s Universal Empire,” William and
Mary Law Review 48 (2007): 1592-1599.
28
It will be noticed that the word « necessary » appears twice in this sentence, but each time with a different
meaning: the first time it denotes the modal concept of necessity (as opposed to possibility), the second time it
has the truth-functional meaning of the converse of the material implication.
a sufficient condition of its invalidity: a rule that satisfies all the necessary tests of pedigree
may still be invalid on the ground of moral criteria of validity.
The Sufficiency Component claims that in addition to social sources, it may be the
case that a norm, while satisfying no test of pedigree, could still be legally valid in virtue of
its moral merit. The rule of recognition picks up the moral properties that are sufficient for a
moral principle to be a legal one, provided that not all moral principles are legal ones.
A caveat is in order. In what follows I will treat “moral” and “immoral” as
contradictories rather than contraries29. This is wrong, of course: something may well be
neither moral (that is, morally good) nor immoral, but rather morally neutral. However this
choice can be explained by the fact that “moral” does not quite mean the same thing in the
Necessity Component and in the Sufficiency Component. As I suggested before, the
Necessity Component is better understood by considering its contraposition: a rule’s
immorality may be a sufficient condition of its invalidity. For instance many legal rules are of
very little moral relevance. It would seem strange to say that since they are not morally good
they are not legally valid. It seems that what the Necessity Component means is that since
they are not immoral, they are legally valid. Therefore the Necessity Component treats
“moral” as meaning “morally good or morally neutral”. By contrast the Sufficiency
Component says that morally good rules may be legally valid for the very reason that they are
morally good. It would make little sense to assume that every rule that happens to be morally
neutral or to be of no moral interest whatsoever would be valid according to the Sufficiency
Component. Therefore, the Sufficiency Component treats “moral” as meaning only “morally
good”.
As these semantic quibbles show, the two components of ILP’s Validity Thesis are
two very different theses, since the Necessity Component makes social sources always
necessary but never sufficient for there to be law, whereas the Sufficiency Component admits
that in some cases source-based considerations are not necessary to ascertain the legal validity
of a rule. In what follows, I will claim that the Necessity Component rests on a confused
notion of legal validity and that the Sufficiency Component (or at least some versions of it)
rests on a confusion between social sources and institutional affiliation.

II. The Necessity Component

29
On this, see Himma, “Inclusive Legal Positivism”, 136-137 (and fn. 21).
 According to the Necessity Component, a legal norm’s moral merit may be a
necessary condition for it to legally valid, or at least its immorality may be a sufficient
condition of its invalidity. This means that among the criteria of legal validity specified by the
rule of recognition or derivatively by positive – e.g. constitutional – rules, one may find moral
criteria that have to be met or satisfied by each source-based legal rule. For instance, in order
to determine whether a state statute prohibition abortion is valid under the Due Process Clause
of the Fourteenth Amendment of the US Constitution, the US Supreme Court surely had to
resort to a moral evaluation, since the Due Process Clause is certainly a moral criterion of
legal validity.

A. The Himma/Kramer debate

The Necessity Component is fraught with difficulties. I think that a good starting point
is the illuminating controversy between Kenneth Himma and Matthew Kramer30. Both are
inclusive legal positivists, although Himma’s version of ILP seems quite thin, since it consists
of a mere conceptual logical possibility that may never correspond to an actual legal system31.
Himma raises the legitimate question of whether the Necessity Component is able to explain
what happens when the US Supreme Court “strikes down” or “invalidates” a law on the
ground of its incompatibility with the due Process Clause. According to Himma, when the
Supreme Court hands down a decision regarding a law’s constitutionality, this decision will
be authoritative; it will become res judicata. Then it will be binding on various authorities and
officials (lower courts bound by the principle of vertical stare decisis, administrative
agencies, etc.); and it shall be so whatever decision the Court makes. If the Court upholds a
statute although it is obvious to any member of the legal community that it is grossly

30
See Kenneth Himma, “Final Authority to Bind with Moral Mistakes: On the Explanatory Potential of
Inclusive Legal Positivism,” Law and Philosophy 24 (2005); see also Kenneth Himma, “Understanding the
Relationship between the U.S. Constitution and the Conventional Rule of Recognition,” in The Rule of
Recognition and the U.S. Constitution, ed. Matthew Adler and Kenneth Himma (New York: Oxford University
Press, 2009); Kramer, Where Law and Morality Meet, p.115-140. For an analysis of this controversy, see Wil
Waluchow, “Four Concepts of Validity” in The Rule of Recognition and the U.S. Constitution, ed. Matthew
Adler and Kenneth Himma (New York: Oxford University Press, 2009). Waluchow’s astuteness in formulating
the main issues that this controversy illustrates is unrivalled. But I am afraid that his conclusions are somewhat
disappointing since it appears the so-called four concepts of validity that he evolves are not different concepts,
but different types of a same concept of validity. This concept does not eschew the ambiguity that I will try to
make explicit in what follows.
31
This is due to a hard-wired methodological tenet of Himma’s legal philosophy, which I mentioned in the
beginning of this article. See Kenneth Himma “Reconsidering a Dogma: Conceptual Analysis, the Naturalistic
Turn, and Legal Philosophy,” in Law and Phiolosophy, Current Legal Issues, ed. Ross Harrison (Oxford: Oxford
University Press, 2008), and his recent article Himma, “The Logic of Showing Possibility Claims.”.
unconstitutional 32 , its decision will nevertheless be binding on lower courts and other
officials. According to Himma, this shows that although the Due Process clause – as well as
many other clauses of the US Constitution, and of many other Constitutions as well – is
obviously meant as a moral constraint on the content of laws, the morality or immorality of
laws is not constitutive of their validity or invalidity. What makes them valid or invalid is the
judge’s decision, which can go both ways. Of course, the Court’s decision does not go
unconstrained: when the Court hesitates between two interpretations of the Constitution, it
shall not uphold what is avowedly the worst interpretation; furthermore, even in legal systems
with no formal, binding principle of stare decisis, courts are always expected to hand down
decisions that are consistent with their own precedents. Therefore, “A duly enacted federal
statute S is law, other things being equal, until declared inconsistent with the best
interpretation of the Constitution that comports with due regard for precedent by the highest
court to consider the constitutionality of S” 33.
By contrast, Kramer maintains that what makes the norm invalid is its inconsistency
with the constitutional clause. The court’s decision does nothing more than to recognize an
invalidity that was already there. When the Constitution includes moral criteria of legal
validity, then it is the norm immorality that makes it invalid, not the Court’s decision. But
Kramer cannot eschew the empirical fact that “a duly adopted norm’s status as a law
antecedes any such ruling by the Court and continues until the norm is deemed unconstitional
by the Court”34. As Waluchow astutely observed, this concession is fatal to Kramer’s theory,
since it raises the question of what happens if no court ever adjudicates upon the matter. What
happens if the matter is never brought before the relevant Court or if the Court declines to
consider it, for instance by way of denying a petition for certiorari?
Be that as it may, Kramer’s reply to Himma is prima facie consistent. Kramer makes
the following points. 1° Although judges can (as a matter of fact) “go both way” when the
validity of law is under their consideration, they may not (as a matter of law) do so. The rule
of recognition directs them to apply correctly its criteria of validity, including moral criteria;
they have a legal obligation to do so. Whether they fail to do so or not is a question of fact,
not of law. 2° The extension of moral categories is not determined by the way judges apply

32
Of course, such obviousness is hardly ever the case in constitutional matters. But this is an a fortiori argument:
if the Court may hand down a decision upholding an obviously unconstitutional law, then a fortiori it may take
whatever decision it deems right when the law’s constitutionality is murky – which is almost always the case.
33
Himma, “Final Authority”, 24
34
Kramer, p. 139. For a similar argument (Himma speaks of « presumptive validity », Marmor of « prima facie
valdity »), see Marmor, Positive Law and Objective Values, 64.
them, but by “objective facts of morality” 35. It seems then that according to Kramer a rule of
recognition or a constitutional rule include moral conditions of legal validity when they make
it an obligation for judges to invalidate a law that does not conform to these conditions. Since
this conformity or non-conformity is a matter of objective fact, the judge’s decision is nothing
more than a way of making explicit what was always the case: the law was invalid from the
beginning.

B. Membership and conformity

I think that Himma has the better of the argument, albeit for the wrong reasons. As I
have noted before, Kramer encounters a serious problem dealing with the temporal gap
between a law being duly enacted and the question of its validity being brought before a
judge. Even if we grant 1° that under an inclusivist rule of recognition or constitutional
clause, judges have an obligation to strike down a rule on the ground of its immorality; 2° that
its morality or immorality is a matter of objective legal fact; and 3° that the striking down of
the law has a retroactive effect36; even if we grant all that, Waluchow’s observation still
remains unanswered. What happens if a duly enacted statute that happens to be “objectively
inconsistent” with the Due Process Clause never goes through judicial review? The statute
turns out to be both valid (because of its traceability to a social source) and invalid (because
of its inconsistency with the moral criterion). Something must have gone wrong here.
It seems to me that the Necessity Thesis, or at least Kramer’s version of it, rests on a
confused notion of validity37. It has often been noticed that “validity” is an ambiguous word
that may have different, though overlapping38, meanings. For the present purposes, we need to

35
Kramer, Where Law and Morality Meet, 130
36
This is a matter of contingent, empirical fact. Sometimes a decision of invalidity has a retroactive effect
sometimes it has not. In French Law, the Constitutional Council’s a posteriori (QPC) decisions regarding the
constitutionality of statues are only pro futuro; but the Council of State’s annulment of an acte administratif has
retroactive force, although the Concil of State has accepted for a long time that the annulment may enter into
effect after the decision was held down (see CE, Ass., May 11th, 2004, Association A.C.! et autres).
37
A related argument can be found in the works of Michael Giudice. See Michael Giudice, “Unconstitutionality,
Invalidity and Charter Challenges,” Canadian Journal of Law and Jurisprudence, 15 (2002); Michael Giudice,
Understanding the Nature of Law: A Case for Constructive Conceptual Explanation (Cheltenham: Elgar, 2015),
113-133. However, Giudice does not rely on a straightforward distinction between two concepts of validity such
as the one I try to expound here; he still try to answer the Necessity Component on the merits. I think that once
the distinction between validity as conformity and validity as membership is made, such a move is not needed at
all.
38
I must make it clear from the outset that the kind of ambiguity I have in mind here is one of polysemy, not
homophony.
deal with only two of those meanings39, validity as membership within a legal system and
validity as conformity to or consistency with a legal norm40.
We use generally the word “valid” or “invalid” as a pretentious way to say “good” or
“no good”. When I say that a train ticket, a contract or a statute are invalid, I mean that they
are “no good” in the eyes of the law. Notice that “valid” here is predicated of both material
stuff and norms. For something to be “good” in the eyes of the law, it has to conform to some
legal rules: the purchase of metro tickets ought to be made in conformity with the metro
company bylaws; the contract ought to be made in conformity with legal requirements;
statutes must conform with constitutional requirements. And so forth. Let me call this validity
as conformity.
But “valid” is sometimes used, at least in the jurisprudential literature, to refer to a
norm being in force within the legal system. A norm is a valid norm of French law insofar as
it belongs to the set of laws that constitute the French legal system. Let me call this validity as
membership.
There is a crucial distinction to be made between the assertion “N is an invalid norm
under French law” and the assertion “N is not a valid norm of the French legal system”. Of
course this distinction is a matter of stipulation. But I also think that “N is an invalid norm”
sounds more like “N is an illegal/unconstitutional norm” than “N is not a valid norm”, which
rather sounds like “N does not belong to this particular system”. Be that as it may, I must
make it clear that I am not dealing here with the subtle nuances of the word “validity” and of
the way lawyers and jurisprudents use it. I am dealing with two different concepts of validity,
and I think that these concepts, though overlapping, are not reducible to each other.
What, then, is the difference between a norm’s membership and its conformity to a
higher-ranking norm41? What is at stake in question in the former is primarily a demarcation

39
I put aside many other meanings of “validity” such as bindingness or obligatory force, which is instrumental
in Alf Ross’s refutation of Kelsen’s views. See Alf Ross, “Validity and the Conflict between Legal Positivism
and Natural Law,” in Normativity and Norms. Critical Perspectives on Kelsenian Themes, ed. S. Paulson and B.
Litschewski-Paulson (Oxford: Clarendon Press, 1998), 159-161. Ross distinguishes between three notions of
validity. I will deal only with the first two of them.
40
For brevity’s sake I will refer to this second concept of validity as “validity as conformity”. But it covers also
the weaker notion of consistency with higher norms. There is an obvious difference between a norm conforming
to another, higher-ranking norm and a norm being merely consistent with another, higher-ranking norm.
However, I will not pursue this distinction here, since both conformity and consistency are instance of a more
general notion of “not being contrary to” higher-ranking norms. As entailed by the precisions given at the end of
Part I, this general notion of “not being contrary to” is central here. As reframed through the consideration of its
contraposition, the Necessity Component states that a norm not being contrary to moral criteria is, or may be, a
necessary condition of its validity. Whether this takes the form of conformity or mere consistency is not relevant
here.
41
I do not claim to be the first one to make this distinction. For similar or related distinctions see Ross, “Validity
and the Conflict between Legal Positivism and Natural Law,” 158-159; Jorge Luis Rodriguez et Daniel Vicente,
problem.42 If N is a norm of French law, then ipso facto it does not belong to the American
legal system. If N is e.g. a moral norm that does not meet certain criteria set by the French
rule of recognition, then it is not a valid legal norm of the French system, and if it does not
meet any criteria set by any rule of recognition of any legal system, then it is not a legal norm
altogether. In what follows, I will assume that the positivist outlook is right, that is that
criteria of legal validity, understood as membership, are normally source-based criteria.
To ask whether a norm is consistent with a higher-ranking norm is independent of its
membership within the legal system. Obviously it generally only makes sense to ask this
question when the norm does actually belong to the legal system but it need not be so. One
could ask this question about a fictitious or hypothetical norm, or about a norm that belongs to
another legal system. For instance it can be asked whether French laws banning so-called
Islamic headscarves from schools or criminalizing the negation of the Holocaust would be
consistent with the First Amendment of the US Constitution (obviously they would not). It is
true that we would not normally say that those French laws are “invalid” under the First
Amendment; the reason is that they are not valid laws of the American43 legal system in the
first place. But if anything, this shows that it makes sense to talk about a norm being invalid,
i.e. inconsistent with a higher-ranking norm, mainly when this norm is actually a valid norm
within a particular legal system (i.e. belongs to this legal system). To put it in a nutshell, in
order to be invalid, a norm must be a valid norm in the first place!44
To illustrate the difference between questions 1° and 2° above, let me take a very
simple example. Congress passes a statute providing that X; then the President signs the bill
into law. Litigants bring the question of its constitutionality before the courts, and ultimately
the case arrives on the US Supreme Court’s docket. The Supreme Court upholds the statute.
We may say, then, that the statute is “valid” in both senses, both belonging to US federal law

« Aplicabilidad y validez de las normas del derecho internacional », Doxa 32 (2009): 188-189. On the
neighboring (but not identical) distinction between formal and material validity, see Guastini, “Rules, Validity
and Statutory construction” in Italian Studies in Law, A. Pizzorusso ed. (Dordrecht: M. Nijhoff, 1992) 22 ff;
Pino, “Positivism, Legal Validity and the Separation of Law and Morals,” Ratio Juris 27 (2014): 207-208,
42
I would readily agree with Brian Leiter that the so-called “demarcation problem” as applied to jurisprudence
and legal philosophy leaves a lot to be desired and should be abandoned altogether. (See Brian Leiter, “The
Demarcation Problem in Jurisprudence,” Oxford Journal of Legal Studies 31 (2011)). But it is nevertheless an
important feature of the activity of lawyers. The demarcation aspect of legal validity is a matter of quid juris, not
quid jus. Part of lawyers’ routine is to find out what are the legal rules, that is, the rules that belong to their legal
system, that are relevant to a particular case or legal question. They will therefore “demarcate” without even
realizing it.
43
For brevity’s sake, when I mention the “American legal system”, I mean both the US federal legal system and
the legal systems of the States.
44
Of course, this is not always the case. Take for instance a priori constitutional review. A constitutional court
adjudicates a statute’s constitutionality after its adoption by the Houses, but before it is signed into law by the
President. In this case, the statute is not yet valid (not yet a member of the legal system), but we nevertheless talk
of its invalidity (its unconstitutionality).
and being consistent with the US Constitution. Two years later, Congress decides to repeal the
statute. It then ceases to be part of the law. We may say that it is not anymore a valid norm
within the American legal system. But it would simply not be right to say that it is “invalid”,
meaning inconsistent with the US Constitution, since the US Supreme Court said quite the
contrary45.
Indeed, all this is quite trivial. But it clearly shows that there is a logical difference
between a norm belonging to a legal system, that is being a valid norm of this system, and a
norm being consistent with higher-ranking norms of the same legal system. Obviously, non-
conformity is often a ground for suppressing the norm from the legal system; in the case of
constitutional courts, it is even a necessary condition. The difference between the French
Constitutional Council abrogating a statute and the French Parliament doing the same is that
the former may only do so if the statute is unconstitutional – or at least if it declares it to be
unconstitutional – whereas the latter may do so for whatever reasons it wishes, most
obviously political expediency. In any case, the fact that the Constitutional Council
abrogates46 a law because it is unconstitutional does not mean that that law does not belong to
the legal system because it is unconstitutional. What makes it not belong anymore to the legal
system is not its unconstitutionality, but the decision made by the Constitutional Council to
abrogate it. We must then distinguish between what makes a norm belong or cease to belong
to a legal system and what are the grounds for its suppression from it.
In the standard positivist picture, what makes a norm belong to a legal system is its
traceability to a source; what makes it cease to belong to it is its non-traceability to a source or
the traceability to a source of a norm that repeals it. This is all a positivist needs to account for
the membership of norms within a given legal system. But, as I shall try to show later on, the
fact that in some cases the suppression of the norm by an authority empowered to do so isn’t
justified unless the norm is inconsistent with a (valid) higher-ranking norm does not mean that
what does the job of suppressing the norm is its own non-conformity; what does this job is the
authority’s decision.
Back to ILP and its Necessity Component. When the Constitution sets “moral criteria
of validity”, we must understand validity in the sense of conformity: a law that does not meet
those criteria is indeed “invalid” from the outset – at least if we grant that it is a matter of

45
Of course, the US Supreme Court can always overturn its own precedents. But remember that I am assuming,
following Kramer, that conformity with morality is a matter of objective fact.
46
I take the example of the French Constitutional Council, because it is empowered by article 62 of the French
Constitution to abrogate unconstitutional statutes. As we shall see later, the US Supreme Court has no such
power.
objective moral truth. But it is plain that, though “invalid” it may be, it is a valid norm that
belongs to the legal system from the very moment it was signed into law, and it continues to
do so until it is repealed, be it by Parliament or by a constitutional court.
It may be objected that whether a norm belongs to a legal system depends precisely on
its conformity to the criteria of validity set out by the rule of recognition or positive rules,
such as constitutional rules. For instance, in French law, a bill must have been passed in
identical terms by both Houses of the legislature (the National Assembly and the Senate47)
and signed into law by the President of the Republic48. If the bill is passed by only one House,
or if it is not enacted by the President, it simply is not a law, but a mere piece of paper. In
order to be a statute at all, and therefore in order to belong to French statutory law, a norm
must necessarily conform to these provisions49, whether or not they are expressly stated in a
positive, e.g. constitutional, rule. It a norm’s membership within a legal system depends on its
conformity to a certain set of criteria, why would not it be the same for the moral criteria of
validity that a Constitution may incorporate? Why would it not be the case that conformity to
moral criteria be a necessary condition of a norm’s membership within the legal system?
This is not an easy objection to be disposed of. I will argue that contrary to the notion
of “conformity with higher-ranking norms”, the notion of “conformity with criteria of
membership” is not a normative, but a conceptual kind of conformity. When we say that a law
is unconstitutional, that is, invalid, we mean that, according to constitutional law, it ought to
be, or should have been, in conformity with constitutional norms. This is a normative
requirement from the legal point of view. But when we say that a rule that does not meet a
particular legal system’s criteria of validity is not “in conformity” with those criteria, we
mean a strictly conceptual claim: this stuff is not what they call “law” in this legal system.
Membership is a matter of conceptual conformity. Whether a given cat conforms to criteria of
catness is a purely conceptual matter: if it does not display certain cat-properties, it is not a
cat. It would make no sense to claim that it ought to be the case that it displays such
properties. The same goes for laws and criteria of membership. Whether a rule can be traced
back to a law-creating fact (a source) is a conceptual condition of its membership within the
legal system. Whether a rule is consistent with higher-ranking norms, including norms
47
French Constitution, Article 24 and Article 45 §1.
48
French Constitution, Art. 10. For simplicity’s sake, I shall ignore here the various procedures by witch
disagreements between Houses are resolved as well as exceptional procedures by which the passing of a bill is
forced upon either one of the Houses or both, such as the so-called “accelerated procedure” (see French
Constitution, art. 45§2), the special provisions of Article 49§3 of the Constitution, and so on.
49
The French Constitution does not expressly stipulate that, but it is plain that the French rule of recognition
does, since no official would treat a norm that has not been passed by both Houses and signed into law by the
President as a valid statutory norm of French law.
specifying the formal and procedural requirements that legal authorities must satisfy, is a
normative matter.
This is why there is an important distinction between criteria of membership of laws
set out in a rule of recognition and the formal and procedural requirements set out by e.g.
constitutional norms. Satisfying the former is a matter of conceptual conformity, whereas
satisfying the latter is a matter of normative necessity. Of course, the rule of recognition is
normative, but its normativity is directed at law-applying organs, which are under the
obligation to apply the laws identified by it. The rule of recognition does not create any
obligation for law-creating organs and it does not confer them any power. This is the job of
Hartian rules of change. By contrast, conformity with a higher-ranking norm is typically an
obligation for law-creating organs, one that shall later be enforced by the courts.

C. Nullity and Annullability

What these examples show is that there is more than a grain of truth in the Kelsenian
adage according to which “the legal norms that belong to a legal order cannot be null, but
only annullable” 50. In non-Kelsenian terms, if a norm is traceable to a source, its own non-
conformity to a higher-ranking norm does not entail that the norm does not belong to the legal
system. If it is to cease to be a member of the legal system, the norm has to be suppressed by
a normative act, such as an abrogation or repeal or annulment, performed by an authority
empowered to do so51. As I noticed before, there is only one significant difference between
the Constitutional Council abrogating a statute and the legislature repealing it: the
Constitutional Council must justify its decision, which may only be grounded in the
unconstitutionality of the statute. By contrast, when the Parliament repeals a statute, it may do
it for any reason it wishes, within certain limits of course52, and generally both the previous
and the new law will be consistent with the Constitution.

50
Hans Kelsen, Pure Theory of Law, trans. M. Knight (2nd ed., Berkeley: University of California Press, 1967),
276-278. I hasten to add that, although this slogan is true, Kelsen has not been very coherent in putting it into
practice. In particular, his theory of dynamic validity is fraught with confusions between the two meanings of
validity I have worked out earlier.
51
I put aside here the case of customary norms, which, in order to be suppressed, have to stop being practiced
during a reasonably long time. I shall come back later to the problem of custom.
52
Indeed, some reasons are not constitutionally permissible. See e.g. the doctrine of animus in American
Constitutional Law and the (rarely used) doctrine of “détournement de pouvoir” in French Constitutional Law.
There are also specific constraints on abrogation or repeal by the legislature, such as the so-called “effet cliquet”
(ratchet-effect) concerning specific legal rights. See also, in French Law, the doctrine of “negative incompetence”
(by delegating to much to executive action, the legislature fails to do its job to the full extent required by the
Constitution).
 It is important to keep in mind that not all constitutional courts are empowered to
annul, abrogate or repeal statutes, that is, to suppress them from the legal system. Himma’s
and Kramer’s own example, the US Supreme Court, is quite interesting in this respect. The
US Supreme Court is not empowered to formally abrogate State or federal statutes. Although
the US Supreme Court (like any American court) may declare a statute to be “void and null”,
it is only empowered to refuse to apply them, and to enjoin lower courts to do the same.
Vertical and horizontal stare decisis will do the rest. But the Supreme Court cannot repeal a
law. Even if we did not distinguish between validity as conformity and validity as
membership (as I argued at length that we should), it would remain that a statute’s non-
conformity with moral criteria (e.g. the Due Process Clause) would be a sufficient condition
of its inapplicability, or unenforceability, but not of its invalidity53.
In a more recent article, Himma has claimed that there is no significant difference
between validity and applicability or enforceability. Discussing this very question, he
concludes:

None of this makes much difference because the Court’s declaration of a norm as
unconstitutional clearly renders the norm unenforceable and hence as lacking the force
that partly constitutes an enacted bill as law; norms of a system S that may not be
legally enforced are not properly characterized as “law” or as having the status of “legal
validity” or “legality.” Legal norms are backed up by the police power of the state.
Once this latter feature is removed, their status as “law,” as far as positivism is
concerned, has for all practical purposes been removed—regardless of whether such
norms remain on the books54.

I would beg to differ, although all this is clearly beyond the point for the present
purposes55. First, the difference is by all means a practical one. Himma himself acknowledges
a few lines before this quotation that “because the statute would take effect without other

53
On the difference between applicability and validity (understood as membership), see Eugenio Bulygin, “Time
and Validity,” in Eugenio Bulygin, Essays in Legal Philosophy, ed. Carlos Bernal, Carla Huerta, Tecla
Mazzarese, José Juan Moreso, Pablo E. Navarro, and Stanley L. Paulson (Oxford: Oxford University Press,
2015).
54
Himma, “Understanding the Relationship,” 103.
55
I am aware that things are a bit more complicated than that, and that Himma may be right to a certain extent. A
law may stay on the books and however cease to be considered as valid law by the officials of the legal system.
Things get even more complicated if we consider so-called desuetude. So I admit that I may err on the side of
excess of formalism here. When the US Supreme Court “strikes down” a statute, what remains “on the books” is
the text and not necessarily the norm. I still think that the few examples I give here show that there is a practical,
and not merely formal, difference between an abrogation or repeal and an authoritative refusal to enforce. In any
case, all this is obiter for the present purposes: even if Himma is right in arguing that what the Supreme Court
really does is abrogate, albeit not in a formal way, the statute, I am still right to argue (as does Himma himself!)
that judicial review (aka constitutional review) is of no help to proponents of the Necessity Component. – My
doubts about the adequate conception of the effect of the Supreme Court’s declarations of unconstitutionality are
due to an ongoing conversation with Themis Raptopoulos. Let him be thanked for that.
action by the legislature if the Court were to reverse itself.” This is a hell of a practical
difference! In France, when the Constitutional Council declares a statute unconstitutional, the
statute disappears from the books. If the Constitutional Council later changes its mind, the
legislature must begin the whole legislative process from scratch.
Of course in the interval, the effect of the declaration of unconstitutionality is roughly
the same in both cases. But it happens quite often that lower courts56 ignore a Supreme Court
declaration of unconstitutionality, and that the Supreme Court declines to grant certiorari; this
would be much more difficult absent any textual basis (any law “on the books”). It also
happens that lower courts find a way to interpret the statute so as to make it consistent with
the Supreme Court’s constitutional rationale: a French court could not do that, since there
would be no statute left to interpret.

***

Let us take stock and sum up. If what I have said about the distinction between
validity-as-membership and validity-as-conformity is correct, then the Necessity Component
must be reframed as the following thesis. In some legal systems, among requirements set out
by higher-ranking norms, there are moral requirements that source-based laws must be
consistent, or in conformity, with. Otherwise such a law is invalid. In some of these systems,
certain courts – or other officials – are empowered to abrogate or annul legal norms because
of their inconsistency with these moral requirements. In order to ascertain whether such-and
such norm is in conformity with these moral demands – specified, for instance in
constitutional clauses –, these courts have recourse to some form or another of moral
evaluation.
None of this is problematic for ELP or for standard legal positivism. First, any
judgment of conformity is evaluative, whether morally evaluative or not; secondly, this
evaluative judgment has nothing to do with a judgment about the norm’s membership within
the legal system. As I have stressed, it is precisely because the norm belongs to the legal
system that the court can abrogate it. A French judge has no authority to declare invalid an
American statute. It would actually make no sense to say that she does, because the American
statute is not a valid norm of French law in the first place.

56
This is even more complicated in a federal system such as the United States. As a matter of principle, the
Supreme Court’s decision to leave a Georgia state statute unapplied holds only inter partes and not erga omnes ;
it does not apply to a nearly-identical Texas statute. Texan officials will be legally bound to comply with the
Supreme court decision only if a federal court issues an injunction ordering them to do so.
 It follows from these remarks that the existence of moral criteria of validity, that is, of
conformity, is no threat to standard positivism or to ELP. When positivists talk of validity,
what they deal with is primarily validity as membership. What exclusive positivists claim is
that a norm N’s membership within a particular legal system does not depend on its moral
merit, but on something else, namely social facts, namely sources. Legal systems provide
those subjected to them with criteria of demarcation between legal and non-legal norms. This
demarcation between what the law is and what it is not (quid juris?) is indeed a specific trait
of law (quid jus?), and helps demarcate between law and other normative systems.
Of course at this point an Inclusive Legal Positivist may still insist that a norm may be
legal only on the ground of its moral merit. This is the Sufficiency Component, with which
we shall deal soon. According to it, sources are not the only criteria of validity: depending of
the rule of recognition of a particular legal system, sources or morality may account for a
norm’s legal validity. Morality becomes a further “source” of law – albeit not a social source.
By contrast, the Necessity Component insists that, depending on the rule of recognition or
other legal norms of a particular legal system, sources plus morality (that is, plus non-
immorality) are necessary conditions of a norm’s membership within the legal system. But, as
I have shown, once the membership/conformity distinction is introduced, this thesis appears
to be fraught with confusions. Once a norm passes a pedigree test, i.e. is traceable to a source,
it is a valid legal norm, however invalid, however contrary to higher-ranking norms it may be.
A norm may then be both valid and invalid. The fact that it is invalid does not make it cease
to be a valid norm of the system. Whether this invalidity is due to the norm violating a moral
requirement set out by the higher-ranking norm does not change anything; the same goes for
non-moral requirements as well57.

III. The Sufficiency Component

A. The Sufficiency Component In Short

57
Would it still be impossible to conceive of a possible legal system where nonconformity to morality is not
only a ground for annulment or repeal but also a sufficient condition of the norm’s nullity, that is, of its non-
membership? In such a world, a bill could be passed by the legislature and signed into law by the head of the
state but it would still not belong to the legal system unless it conforms to some moral requirements. To ascertain
whether the rule is a legal rule at all, one would have both to look at the sources and evaluate this norm’s moral
merit. This world would not be very close to ours. However, even so there would be Kelsenian explanation to it,
at least as much satisfactory as ILP’s explanation. Such a legal system would empower everybody to annul
source-based legal norms. Traceability to a source would still be a sufficient condition of membership, but
everybody – and anybody – could repeal it. – This is actually close to Kelsen’s conception of international law
(see Kelsen, Pure Theory of Law, 277).
 The Sufficiency Component, it will be recalled, states that it is possible that, in some
legal system, a norm’s “mere” moral merit might be a sufficient condition of its legal validity.
Moral merit would then be an additional “source” of law, albeit not a social one. In order to
ascertain whether or not a given norm belongs to this legal system, one would have to either
ask if it is traceable to a social source – which is a matter of “brute” fact – or see if it displays
such-and-such moral property – which is a matter of moral evaluation.
The moral properties in question are picked out by the rule of recognition, which itself
is a social rule. As Coleman often puts it, there is a difference between the grounds and the
content of the criteria of legality. Although they are grounded in a social practice (namely the
rule of recognition), their content need not be social facts, such as social sources, but may
well be moral facts. The point in making this distinction is to address Dworkin’s objections58,
according to which legal systems comprise un-pedigreed as well as pedigreed norms,
principles as well as rules. As Coleman writes, “unlike Dworkin, the inclusive legal positivist
holds that whether or not morality is a condition of legality in a particular legal system
depends on a social or conventional rule, namely the rule of recognition”.59 According to
Coleman, then, an important distinction has to be made between 1° the social (or, in some
sense, conventional) character of the rule of recognition and 2° the social character of legal
criteria of validity set out by the rule of recognition. According to him, everything a legal
positivist needs is 1°, not 2°.
Before we scrutinize the Sufficiency Component, I hasten to point out that it does not
suffer from the same defects as the Necessity Component. What is problematic in the
Necessity Component is most and foremost its dialectic of social sources and morality. The
Necessity Component, it will be recalled, demands that every norm should meet in the same
58
Ronald Dworkin, Taking Rights Seriously (Cambridge [Mass.]: Harvard University Press, 1978). I believe that
the Sufficiency Component is able to address efficiently the main claims that Dworkin makes in Taking Rights
Seriously. It is however unable to deal with the conceptual apparatus set out in Law’s Empire. In this book,
Dworkin purely and simply dismisses the very notion of criteria of validity (see Ronald Dworkin, Law’s Empire
(Cambridge [Mass.]: Harvard University Press), 90). Dworkin’s interpretive holism can very well do without the
idea that law is comprised of pedigreed as well as un-pedigreed norms. This is a major difference between
Taking Rights Seriously and Law’s Empire. Only a mixture of the Indetification Thesis and the Validity Thesis,
that is, only a mixture of questions of content and questions of validity is able to address Dworkin’s claims from
Law’s Empire on.
59
Coleman, Practice of Principle, 108. I set aside the very problematic characterization of the rule of recognition
as a conventional rule, which supposes that people follow it for the only reason that everyone else is doing the
same. This is a much-disputed problem among positivists, one I cannot even begin to address here. See, for
doubts on the conventional nature of the rule of recognition, Leslie Green, “Positivism and Conventionalism,”
Canadian Journal of Law and Jurisprudence 12 (1999); Bruno Celano, “La regola di riconoscimento è una
convenzione?,”, Ragion pratica 21 (2003); Julie Dickson, “Is the Rule of Recognition Really a Conventional
Rule?,” Oxford Journal of Legal Studies, 27, (2007); for a forceful defense of the conventionality of the rule of
recognition see Andrei Marmor, Social Conventions (Princeton: Princeton University Press, 2009), 155-175.
time to two criteria of validity: both a social source (legislation, precedents, etc.) and a moral
criterion. We have seen that this result was close to absurdity due to confusion between two
concepts of validity.
No such criticism threatens the Sufficiency Component. This thesis claims that the
legal validity of a given norm may depend either on its traceability to a social source or on its
moral properties. An adherent to the Sufficiency Component is by no means bound to accept
the Necessity Component; for instance Coleman does not say much about it. All she has got
to claim is that a given legal system may be comprised of both source-validated, fully
pedigreed norms and un-pedigreed norms that are valid because they display the relevant
moral properties. Both kinds of norms are legal norms because the rule of recognition says
they are.
Of course it may happen that pedigreed immoral norms (or pedigreed norms with
possible immoral applications) exist within the legal system and that they conflict with un-
pedigreed legal-moral norms (Dworkinian principles, for instance). Such a conflict is indeed
bound to happen. But it is trivial that normative conflicts exist in most legal systems, even in
those where the rule of recognition only acknowledges traceability to a source among the
criteria of validity. The fact that, in a legal system corresponding to the Sufficiency
Component, the conflict is resolved in favor of the un-pedigreed legal-moral norm is but an
illustration of the Lex Superior rule. There is no need to appeal to the Necessity Component to
explain that.
Is the Sufficiency Component correct? It seems to be. After all, it does not suffer from
the same confusions as the Necessity Component. Let us take the same-old-same-old Riggs v.
Palmer case. Suppose you kill your grandfather before he removes your name from his will.
Since you are still in it, you go to court to claim your share of the inheritance. The judge, then,
applies a principle: nemine prodesse debet dolus suus, no one may profit from his own wrong.
The judge does not seem to have broken the law, although you should have got your share
according to current inheritance law. The easiest way to explain what just happened is to
show that the judge applied a valid, albeit un-pedigreed, legal norm. The Sufficiency
Component is right.
Or is it really? In what follows I will try to point out that it suffers from various
weaknesses. But first I will focus on one of the most famous replies to the Sufficiency
Component, and why it is not an effective way to reply to it60.

60
I will focus on one of his main arguments. Other arguments among those put forward by Raz are indeed more
successful, such as the duplication argument I have mentioned in Part I of this article.
 B. Raz’s Reply and Its Failure.

In various writings61, Raz has mounted a formidable challenge against the Sufficiency
Component. To put it in a nutshell, Raz makes a distinction between membership and
bindingness62. Sometimes the law requires the application of a norm which does not belong
to the legal systems. A norm’s bindingness upon officials is therefore not conclusive of its
membership within the legal system. When a judge applies a moral principle, then, she does
not apply a valid legal norm, although this application may well be required by law. Raz
draws a powerful analogy with conflict-of-law doctrines in private international law. When
adjudicating a divorce matter, a French judge may be required to apply a rule of Spanish
family law. The same goes with moral norms that the judge may be under the duty to apply.
According to Raz, Article 1.1. GG (see supra, Part I) does not “incorporate” moral norms into
law, but enjoins judge to apply those moral norms.
I think that the distinction between membership and bindingness or applicability is an
important one, as I have stressed elsewhere63. However it fails to discharge the job of refuting
the Sufficiency Component. I see two reasons for this failure: 1° there are many significant
differences between foreign legal rules and moral principles; 2° Raz’s claims are more fit to
reply to ILP’s Identification Thesis (see my Introduction) than to the Sufficiency Component.
Let me begin with the latter.
Choice-of-law rules are positive legal rules. They are rules of municipal 64 or
international65 law requiring from State officials to apply in some cases norms that belong to
other legal systems. Raz is totally right to argue that in such cases, the foreign legal rules are
not “incorporated” into the legal systems to which these officials belong. But does the same
go for moral norms? Of course it happens quite often that positive legal rules direct judges
and other officials to apply moral norms. Take for instance Article 375-1 of the French Civil
Code: “The juvenile judge (…) shall always endeavor (…) to rule in strict consideration of
the interest of the child”. No positivist, be she Inclusivist or Exclusivist, will ever deny that
such a rule directs the juvenile judge to apply whatever moral norms define the “interest of
61
I will focus only on Joseph Raz, “Incorporation by Law” in Joseph Raz, Between Authority and Interpretation
(Oxford: Oxford University Press, 2009), 193.
62
This distinction is fully articulated in Raz, The Authority of Law, 149.
63
See Mathieu Carpentier, Norme et exception. Essai sur la défaisabilité en droit (Paris: Varenne/LGDJ, 2014),
143-156, 248-257.
64
See, in France, the rules set out by the Cour de Cassation in Cass, Civ. 1, October 11, 1988, Rebouh; C. Cass,
Civ. 1, Octobre 18, 1988, Schule; Cass, Civ 1, December 4, 1990, Coveco.
65
Resulting mainly from bilateral treaties.
the child”. But, as I argued at length in Part I, all an inclusive legal positivist has to claim is
that in order to ascertain the content of Article 375-1 of the French Civil Code, the juvenile
judge will have to have recourse to a moral evaluation of the facts of the case. I called this
Epistemic Incorporation (I have also claimed that, in easy cases, it is a very weak form of
evaluation). Epistemic Incorporation is not the (absurd) claim that the relevant moral norms
thus applied are valid norms of the legal system.
Epistemic Incorporation is the heart of the Identification Thesis: one cannot identify
what the rule requires without having recourse to moral evaluation. It has to be distinguished
from what I called Semantic Incorporation, which is the same as the Sufficiency Component.
The Sufficiency Component is not a claim about the “incorporation” of moral norms through
positive legal rules, but through the rule of recognition. This point has been forcefully
stressed by Matthew Kramer:

The debate between Incorporationists [i.e. proponents of the Sufficiency Component]

and Exclusivists does not center on the proposition that the contents of moral principles
or of foreign laws can be formulated and enacted by a legislature as some of the
domestic laws of the jurisdiction within which the legislature operates. That proposition
about formulation and enactment would be endorsed by all Exclusivists with reference
to foreign laws, and some Exclusivists would endorse it with reference to moral
principles. Every Incorporationist theorist knows as much66.

From the point of view of legal validity, the norm according to which the judge must
rule in strict consideration of the interest of the child is part of the legal system since it is
traceable to a source. It is an article of the Civil Code, which is statutory law. It is as source-
based as it gets. The fact that it has the same content than a moral norm, or that in order to
ascertain this content one has to resort to moral norms, does not change anything to this
simple fact.
By contrast, the Sufficiency Component is about un-pedigreed norms that are not
traceable to any social source. Here is how Kramer (aptly) defines it: “moral principles
regularly regarded by a regime’s officials as legally determinative are indeed legal norms,
notwithstanding that they may never have been laid down in any explicit sources such as
legislative enactments or judicial rulings” 67. The Sufficiency Component claims that the rule
of recognition picks out certain moral properties as criteria of validity. Trying to refute it by
showing that when positive legal rules use moral concepts they direct judges to use extra-legal

66
Kramer, “Moral Principles and Legal Validity,” Ratio Juris 22 (2009): 49.
67
Kramer, “Moral Principles and Legal Validity,” 45.
standards amounts to completely missing the target. This rejoinder may be efficacious against
the Identification Thesis but not against the Sufficiency Component68.
Since the Sufficiency Component is only about moral properties picked out by the rule
of recognition as possible criteria of legal validity – that is, membership –, and since it is not
about the moral content of pedigreed source-based positive legal norms, Raz’s rejoinder fails.
After all, Raz’s key example is about Article 1.1 GG, a pedigreed norm if there ever was. Of
course one could imagine a positive legal norm – for instance a constitutional rule –
stipulating, “All norms furthering respect for human dignity are valid norms of the legal
system”. But such a rule would be very different from Article 1.1 GG, which says nothing of
the sort, but merely prohibits officials from infringing human dignity and implicitly
empowers the courts to enforce this prohibition69; and it actually would look much more like
a “positivized” rule of recognition.
My point however is that, if the Sufficiency Component is about the rule of
recognition, then it is impossible to refute it by using the membership/bindingness distinction.
The very existence of a rule of recognition depends entirely on the fact that some people (the
system’s officials, and beyond them, a huge part of the actual population) consider some rules
to be valid and some others not to be. This is evidenced by the very fact that judges apply
them. – Of course, judges also apply norms that are not valid in their own legal system, for
instance foreign norms in choice-of-law contexts. But this happens because a pedigreed norm
(be it norms of their municipal legal system or rules of international law) directs them to do
so. The Sufficiency Component states that an Inclusive – or Incorporationist in the semantic
sense – rule of recognition exists as long as the officials consider un-pedigreed moral norms,
norms that are not traceable to a source, as belonging to the legal system. It is therefore
impossible to try to refute it by arguing that doing so, they merely apply some extra-legal
norms. To argue that such norms may never be valid norms of the legal system, Raz
presupposes that a rule of recognition cannot be inclusivist, which begs the question. If,
absent any positive rule requiring them to do so, French officials were treating all laws passed
by the American Congress as valid rules of French law, it would be quite difficult to argue
that this practice is analogous to the choice-of-law process. We would have to admit that
American legislation is a source of French law.

68
It bears noting that Raz explicitly says that he intends to address the sufficiency component. So this is not
misinterpretation on my part. See Raz, “Incorporation”, p. 203.
69
This provision is of course made explicit by Article 93(1)4a GG instituting the constitutional complaint
procedure (Verfassungsbeschwerde).
 Of course, such an example is quite far-fetched as far as foreign legislation is
concerned. But it is very less far-fetched when applied to moral principles. This leads us to
the first reason of Raz’s failure as announced earlier: there are massive differences between
moral principles and foreign laws. This point has been stressed by various proponents of ILP.
They are right to a certain extent, but I also think that ultimately their argument backfires. Or
so I shall argue.

C. A Methodological Digression

Let me pause for a moment. In this article I do not intend to refute Inclusive
Positivism on the basis of a robust, substantive theory of law. This is the usual way of doing
it, though: proponents of ELP often argue that ILP is incompatible with this or that
substantive thesis about law, such as the so-called practical difference thesis. My aim here is
both more modest and, I think, more devastating for ILP, since I only try to dispel some
confusions well entrenched at its roots. As I have shown about the Necessity Component,
there is actually not much to refute, since you cannot refute a confused claim.
The Sufficiency Component, however, proves to be a harder nut to crack. As I have
shown, among Raz’s own arguments against it, there is a conceptual argument, resting on a
clarification between the concepts of validity and bindingness. This argument fails. This is
humbling thought. Maybe the Sufficiency Component is conceptually consistent after all. Do
I have to go down the road of substantive jurisprudential argument in order to refute it?
As I mentioned in the introduction to this article, proponents of ILP disagree about
methodology and about what they aim to achieve. If Himma is right that ILP’s truth is a
matter of pure logical possibility, then I would have no choice than to go down the
substantive jurisprudential road. I would have to show that the concept of law, as explicated
by a substantive jurisprudential theory, excludes any incorporationist rule of recognition. To
be frank, I am not sure that such a refutation is possible; but I am not sure either that Himma
is right about possible-worlds methodology.
I think that Coleman’s version of ILP’s methodology is more appealing. Coleman is
also a proponent of conceptual analysis. However, he argues that ILP’s truth does not depend
on its descriptive accuracy, but on its ability to explain and interpret better than its rivals the
features of actual legal systems. This account of jurisprudence as a hermeneutic method
strikes me as reasonable and practical.
 If we adopt the hermeneutic methodology, we can try to show that ILP does not do a
better job than its rivals explaining and interpreting actual legal practices. In other words, I
will try to point out that an interpretation of “moral principles in the law” as fully pedigreed,
source-based norms is viable. And the irony is that this explanation is provided by proponents
of ILP themselves.

D. Free-floating Norms and Custom

Let us go back where we left off: the difference between moral principles and foreign
legal norms. Kramer has launched a powerful rejoinder to Raz’s validity/bindingness
argument by showing that his analogy between the use of moral principles in the law and
choice-of-law procedures is deeply flawed. I agree with everything he has to say on this
matter, but, as I said, and as I am going to show, his argument backfires.
A caveat: Kramer defends a modest version of the Sufficiency Component that applies
only in hard cases70. This is quite bizarre. The Sufficiency Component is a thesis about
membership. Does Kramer mean that moral principles belong to the legal system in hard
cases, and do not in easy ones? Or does he mean that they belong to the legal system all
along, but that judges are under the obligation to apply them only when they are faced with
hard cases? If anything, answering affirmatively the latter question would only strengthen
Raz’s membership/bindingness distinction. Besides, the very notion of a hard case seems to
imply that the law has run out, and that the adjudicating organ is bound to exercise some form
of discretion.
Be that as it may, I do not intend to scrutinize in detail Kramer’s own version of the
Sufficiency Component. I only wish to examine one of his key arguments against Raz’s
analogy between moral principles and foreign legal rules, and show how it is actually fatal to
any account of the Sufficiency Component, whether modest or robust.
Kramer’s argument goes like this71. Proponents of ILP as well as ELP readily admit
that, in some cases at least, judges are under the obligation to apply moral principles. These
principles are markedly different from other kinds of norms that judges are sometimes
required to apply, such as foreign legal rules in choice-of-law contexts. It is undisputed that
foreign legal rules do not belong to the judge’s own legal system, but the same is not true for
moral principles. Foreign legal rules are posited by authorities of the legal system to which

70
Kramer, Where Law and Morality Meeet, 34.
71
Kramer, Where Law and Morality Meet, 38; Kramer, “Moral Principles and Legal Validity,” 46.
they belong; they cannot be sources of law in legal systems in which the acts of those
authorities are not recognized as legal sources. As such, American rules cannot belong to the
French legal system72, because the set of facts that created them is not recognized as a source
of French law.
By contrast, moral principles are not posited, ex hypothesi, by any authority. In this
respect they are analogous to custom. Kramer means this as an analogy, not as an identity, but,
as we soon shall see, going from the latter to the former is quite a difficult temptation to resist.
According to Kramer, no proponent of ELP can refute that some rules of recognition allow
customary rules to belong to their legal system. Customary norms are flee-floating norms;
they do not have any affiliation with an institutional authoritative act. At some point they may
be granted institutional recognition, but this is by no means conclusive of their legal validity.
Before institutional recognition, they are valid insofar as they are practiced. They have all the
characteristics of what Hart calls primary rules: for instance, they are immune from deliberate
change.
According to Kramer, the same goes for moral principles. – It is obvious that Kramer
refers mainly to principles of critical validity, that is, objectively valid moral principles,
whether practiced or not; on the other hand, principles of positive morality are customary
norms, so the analogy is useless as far as they are concerned73. – Moral principles are free-
floating norms that are incorporated into the law independently of any institutional affiliation.
In this respect they are much closer to customary norms than to foreign legal norms. If the
Exclusive Legal Positivist has no trouble acknowledging that customary norms are valid legal
norms – although sometimes she may encounter important difficulties accounting for it –, she
must explain why the same would not go for moral principles. What makes it impossible for
American norms to be incorporated into the French legal system is that they already have an
institutional affiliation; but the same obviously does not go for free-floating norms, which are,
by definition, free of any institutional affiliation.
This argument is quite ingenious on Kramer’s part. But unfortunately it is a double-
edged sword. First, it may be noticed that when a French official applies a foreign legal rule,

72
Of course the French and American legal systems may well have identical legal rules. I set aside the difficult,
if not abstruse, ontological question of whether two identical norms are the same norm.
73
For another defense of the idea that ILP is concerned with “true” morality, and not positive or conventional
morality see Coleman, Practice of Principle, 151. I think the difference is not really relevant. Moral evaluation is
involved not only in the determination of “true” moral duties but also in the ascertainment of what conventional
or positive morality requires, since positive morality does not have a rule of recognition. It is true that, as I
mentioned, norms of positive morality are customary. But they are normally not customary legal norms (for
instance they lack the opinio juris that makes them legal norms). Therefore I think that a rule of recognition
“incorporating” norms of positive morality would still be inclusivist.
pursuant to a binding choice-of-law rule, this rule may well be customary. There are foreign
customary legal rules74! Let us suppose that Syldavian rules of marriage law are customary.
The fact that a French judge applies them in a divorce case does not make them belong to the
French legal system, even if, pace Kramer, the case is a hard one. But still, they have no
institutional affiliation; they are free-floating. So what is stopping us from considering that
they actually are incorporated into the French legal system? If free-floating foreign norms
cannot be incorporated, Kramer has now to explain why free-floating moral norms could be.
Mere free-floatingness will not do the job.
Besides, and more importantly, Kramer confuses institutional affiliation, i.e. the fact
that an authority “posits” a norm, and social sources of law75. Social sources are law-creating
social facts. Customary practice is a set of social facts from which customary rules stem
(provided that the opinio juris is present too). When a rule of recognition includes custom as a
source of law, when it makes traceability to customary practice a criteria of legal validity, it
entails that customary norms belong to the legal system exactly in the same way than statutes
or precedents. Kramer is right to argue that the absence of any institutional affiliation has no
impact on a rule’s membership within the legal system. Of course there may be a latency
period when it is dubious whether or not this or that rule is really customary, whether or not it
has been sufficiently practiced and so on. This is a basic Sorites Paradox. But when the
customary rule gets entrenched, it belongs to the legal system, for a simple reason: it is
traceable to a social source, that is, to a set of social facts. Of course, the reason why members
of the group adopt this customary practice is its moral merit, but (hopefully!) the same goes
for every legal rule. The reason why the resulting customary rule is valid is not its moral merit,
but the fact that it stems from a social source. Here again, free-floatingness makes no
difference. The difference between a customary rule and a moral principle is that the former is
traceable to a source whereas the latter does not. Both are free-floating.
We can therefore ask the following questions. Do moral principles that judges apply to
solve cases (according to Kramer, hard ones) belong to the legal system because of their
moral merit76? If so, they have nothing in common with custom, since customary norms
belong to the legal system regardless of their moral merit. Or are these principles not

74
When a French national (such as myself) marries a foreign national (as I did), she will be asked by the civil
registrar to produce a “certificat de coutume” delivered by the authorities of her country. Unless she does so, the
banns cannot be published. Of course this is just an archaic appellation (in most cases, the laws mentioned in
those certificates are statutory, not customary, rules), but it is quite telling.
75
In another paper, I have argued that sources are facts and not persons (« Sources, Validity and (Soft) Law »,
unpublished draft)
76
By having moral merit, I mean displaying the moral properties allegedly picked out by the rule of recognition.
customary norms in the first place? If they are, they are source-based, and the Sufficiency
Component fails.
Here we see why the moral principles/custom analogy backfires. It is much simpler to
argue that between custom and incorporated moral principles there is not analogy, but an
identity. It is therefore much simpler to claim that moral principles that are allegedly
incorporated into law are in fact customary norms. They belong to the law because they are
customarily practiced, either by the ordinary citizens (primary customary rules) or by judges
and other officials (customary rules of adjudication).
It bears noting that the case does not have to be a hard one for such customary moral
principle to be apply. If a prostitute and I sign a contract under which I agree to pay a certain
sum of money in exchange of sexual performance, this contract will obviously be void
pursuant to the aforementioned Article 1133 of the French Civil Code (see Part I). If, however
I have already advanced the money, I will not be allowed to claim restitution before the courts
because of the nemo auditur principle, as moral a principle as it gets. The nemo auditur
principle is a customary rule, and the case is indeed a very easy case. Of course, as the great
French jurist Jean Carbonnier once wrote: “this survival [of the nemo auditur maxim] may
create problems (…) for whoever does not admit that custom might be a source of law” 77. But
most positivists today gladly admit that custom is a source of law.
Is it impossible to conceive of a legal system where the rule of recognition would
include moral merit as sufficient condition of legal validity? There is room in the logical
space for such a system. But even so, I am unconvinced. Unless the rule of recognition states
that every moral principle belongs to the legal system, in which case the necessity of having a
legal system in the first place is doubtful, it will have to pick out the relevant moral properties.
In order to know what moral properties are selected, we have to take a look at the practice of
officials. What kind of norms do they routinely apply? The fact that a single judge in a single
case invokes a moral principle that nobody has ever heard of before does not entail that this
principle be legally valid. In order for a moral property to be picked out as a criterion of legal
validity, it will have to be constantly applied by the system’s officials.
This is so because, in general, the selection of the legally relevant properties rules
must have, that is, of the criteria of legal validity, depends itself on the practice of judges and

77
Jean Carbonnier, Droit civil. Volume II: Les biens. Les obligations (Paris: Presses Universitaires de France,
2005), at 2014.
other authorities. After all, the rule of recognition itself can be described as a customary rule78.
In most legal systems, it is customary, or if you prefer, meta-customary, that judges apply
statutory rules and customary rules. From this fact we can infer that under the rule of
recognition of most legal systems, statutory rules and customary rules are legally valid. In our
hypothetical legal system, it is customary, or meta-customary, that judges apply norms that
both have specific moral properties and are applied on a regular basis. I insist that if they are
not constantly applied, there is not need to talk of incorporation at all. If those moral norms
only have few isolated occurrences of application, there will not be any practice of
recognizing them as valid. Isn’t it possible that, although the reasons why judges apply them
in the first place are full-fledged moral reasons, what makes them legally valid is precisely the
fact that judges constantly apply them? Even in this hypothetical legal system, an
interpretation of such moral principles as customary source-based norms seems feasible.

Conclusion

What I have tried to do in this article is to point out some conceptual weaknesses of ILP and
its Validity Thesis. The Necessity Component of the Validity Thesis, according to which
morality may be a necessary condition of legal validity, confuses membership and
conformity, nullity and annulability. A norm’s immorality may well be, in some legal
systems, a sufficient condition of its invalidity, i.e. its violation of a higher-ranking norm, but
it is never a sufficient condition of it not being valid. The Sufficiency Component, according
to which a norm’s morality may be, in some systems, a sufficient condition of its legal
validity, rests on a confusion between traceability to a social source and institutional
affiliation. The legal system that the Sufficiency Component describes is not logically or
conceptually impossible – but it does not seem to do a great job explaining key features of
actual legal systems that we know.
Nothing I have said here should be construed as a defense of Exclusive Positivism. In
a way, this whole paper is only a pars destruens – a pars construens has yet to be delineated.
In any case, my point was not to defend, against ILP, some theoretical tenets at the core of
ELP. Inclusivists spend too much time trying to show that their theory is compatible with
certain features that Exclusivists deem essential to the nature of law and incompatible with an
inclusivist rule of recognition. Among those features is the alleged ability that law has or

78
Hart famously endorsed this thesis in the Postcript of The Concept of Law. I am not sure that I agree with that
characterization, but discussing it would take us too far.
claims to make a practical difference to someone’s decisions, actions and practical
deliberations. This practical difference thesis (as Coleman usefully dubbed it79), examples of
which include Raz’s service conception of authority and Shapiro’s guidance theory of rules,
entails that if legal rules are to make a practical difference, they cannot be determined by
having recourse to moral argument. As a result, Coleman and other Inclusivists spend a lot of
time trying to show why ILP is compatible with the practical difference thesis.80
As I have stated before, what I have aimed to do here is to provide useful conceptual
clarifications; I have not been pursuing any substantive jurisprudential agenda. I have not
been pointing out features that are essential to the nature of law and with which ILP is
incompatible. I had two reasons to do so. The first reason is that, if ILP rests on conceptual
mistakes and confusions, for instance confusions about what positivists usually mean when
they talk about “validity”, the debate itself loses all interest; it becomes a mere battle of
words. The second reason is that I have no reason to assume that the features that all those
jurisprudents claim to be essential to law are really that essential. Actually, I have no reason
to assume that these features are essential to a positivist theory of law. It seems therefore a bit
sterile to debate about the question whether or not these features are compatible with ILP.
As a matter of fact, whether the practical difference thesis is sound and whether it is
not necessary to accept it to be a legal positivist is highly debatable. But this is a matter for
another occasion.

79
Jules Coleman, “Incorporationism, Conventionality and the Practical Difference Thesis,” Legal Theory 4
(1998).
80
See for instance Coleman, Practice of Principle, 120-148. See also Waluchow, Inclusive Legal Positivism,
141; Wil Waluchow, “Authority and the Practical Difference Thesis,” Legal Theory 6 (2000); Kramer, Where
Law and Morality Meet, 23.