Matthew H. Kramer - Moral Principles and Legal Validity

Ratio Juris. Vol. 22 No.
1 March 2009 (44–61)
Moral Principles and Legal Validity

MATTHEW H. KRAMER
Abstract. Two recent high-quality articles, including one in this journal, have
challenged the Inclusivist and Incorporationist varieties of legal positivism. David
Lefkowitz and Michael Giudice, writing from perspectives heavily influenced by
the work of Joseph Raz, have endeavored—in sophisticated and interestingly
distinct ways—to vindicate Raz’s contention that moral principles are never among
the law-validating criteria in any legal system nor among the laws that are applied
as binding bases for adjudicative and administrative decisions in such a system.
The present article responds to their defenses of Raz’s Exclusive Legal Positivism.
1. Introduction
Two recent high-quality articles, including one in this journal, have chal-
lenged the Inclusivist and Incorporationist version of legal positivism that
I have sought to elaborate.1 David Lefkowitz and Michael Giudice, writing
from perspectives heavily influenced by the work of Joseph Raz, have
endeavored—in sophisticated and interestingly distinct ways—to vindicate
Raz’s contention that moral principles are never among the law-validating
criteria in any legal system nor among the laws that are applied as binding
bases for adjudicative and administrative decisions in such a system. In
the present article, I respond to their defenses of Raz’s Exclusive Legal
Positivism.
By defending Inclusive Legal Positivism and Incorporationism, this
article pays tribute to Jules Coleman. Although Coleman was not quite the
first contemporary legal positivist to embrace the idea that moral principles
can be incorporated into the law, he has amplified that idea with admirable
adroitness and has done at least as much as anyone else to bring it to
prominence. I have disagreed with some of his positions and arguments
(even while I have remained broadly on his side of the debates between
1
The two articles to which I shall be responding in this essay are Lefkowitz 2005 and Giudice
2008. Some other recent criticism of my Incorporationist position is voiced in the eighth
chapter of Dworkin 2006. I have replied to Dworkin separately in Kramer 2007.
© 2009 The Author. Journal compilation © 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and
350 Main Street, Malden 02148, USA.
Moral Principles and Legal Validity 45
Inclusivists/Incorporationists and Exclusivists),2 but the importance and

perceptiveness of his pioneering work on these matters are beyond any
reasonable doubt. For anyone interested in such matters or in other issues
of analytic legal philosophy, Coleman’s writings are invaluable.
2. Some Background Remarks

If my rejoinders to Lefkowitz and Giudice are to be understandable, this
article must begin with some thumbnail accounts of Inclusive Legal
Positivism, Incorporationism, and Exclusive Legal Positivism. I here draw
upon—and modify and greatly condense—the broad summaries of those
positions in some of my earlier work (Kramer 2004, 2–3).
Inclusive Legal Positivism consists in the following thesis: It can be the
case, though it need not be the case, that a norm’s consistency with some
or all of the requirements of morality is a necessary condition for the
norm’s status as a law in this or that jurisdiction. While this necessary
condition for legal validity is not inherent in the nature of law, it can be
imposed as a threshold test within any particular legal regime. That test,
which can be applied by the officials in such a regime to all of the legal
norms therein or to only some subset of those norms, is one of the criteria
which the officials use for ascertaining the law.
Incorporationism consists in the following thesis: It can be the case,
though it need not be the case, that a norm’s correctness as a moral principle
is a sufficient condition for its status as a law in this or that jurisdiction.
Although the role of moral correctness as a sufficient condition for legal
validity is not inherent in the concept of law, it can operate in any particular
legal regime. Incorporationism maintains that moral principles regularly regarded
by a regime’s officials as legally determinative are indeed legal norms, notwith-
standing that they may never have been laid down in any explicit sources such as
legislative enactments or judicial rulings. When officials do regularly engage in a
practice of treating the moral soundness of norms as a sufficient condition for the
norms’ legal authoritativeness, they have thereby incorporated moral principles into
the law of their system of governance—even before some or all of the applicable
principles have individually received any explicit recognition.3
Whereas Inclusive Legal Positivism and Incorporationism are perfectly
compatible and are typically conjoined, Exclusive Legal Positivism is
opposed to each of them. Exclusive Legal Positivists contend that the very
nature of law is inconsistent both with the role of moral principles as legal
norms and with the role of such principles as criteria for validating legal
2
My principal criticisms of Coleman’s work on legal positivism are contained in chaps. 1–3
and 7 of Kramer 2004. See also Kramer 2003.
3
I have italicized these two sentences because I shall wish to refer to them in section 3 of this
article.
Ratio Juris, Vol. 22, No. 1 © 2009 The Author. Journal compilation © 2009 Blackwell Publishing Ltd.
46 Matthew H. Kramer
norms. While gladly acknowledging that moral principles often get

invoked in the adjudicative and administrative activities of legal officials,
the Exclusivists declare that those principles are always extra-legal
standards. Such standards affect the decisions reached by the officials, but
only because those decisions are not based solely on legal requirements
and prescriptions.
Because the two philosophers to whom I reply in this article are
principally concerned to defend Raz’s version of Exclusivism, we should
briefly here ponder the paramount consideration that has led Raz to
espouse the Exclusivist account of law. He has long affirmed that law
always claims to possess legitimate authority,4 and he has maintained that
law must therefore be something that is capable of possessing legitimate
authority. To be capable of possessing such authority, however, law must
impose requirements that are ascertainable without reference to any moral
principles. If people within a jurisdiction had to have recourse to such
principles in order to ascertain what is legally required and what is legally
permissible there, the law of the prevailing system of governance would
not be interposing itself between those people and the foremost reasons
that are independently applicable to them. It would thus not be performing
an authoritative role. Hence, given that law must be capable of possessing
legitimate authority, and given that it cannot possess such authority if
people have to refer to moral principles in order to discover what is legally
required of them and what is legally permissible for them, no such
principles can be among the norms of a legal system. So Raz reasons, on
the basis of his general theory of authority.
3. Lefkowitz on Customary Norms as Legal Norms

One further bit of background information will serve to place in context
Lefkowitz’s critique of my Incorporationist theory. My previous discussions
of Incorporationism have propounded a complex test for the status of any
norm as a law within any particular jurisdiction (Kramer 2004, 38–43, 92–7;
Kramer 2007, 557–8). An existent norm N is among a legal system’s laws if
and only if each of the following two conditions is satisfied:
N itself is regularly treated by the system’s officials as a justificatory
basis for adjudicative and administrative decisions, or N derives from a
provenance that is regularly treated by the officials as a general source
of binding bases for adjudicative and administrative decisions.5
4
On this longstanding element of Raz’s thought, see Kramer 1999, chap. 4. I take exception
to various aspects of Raz’s Exclusivism at many junctures in the first four chapters of Kramer
2004.
5
Thus, for example, an anti-jaywalking mandate introduced by an authoritative legislative
body is usually a law of the jurisdiction in which it has been enacted, notwithstanding that
it might never be invoked or given effect in situations to which it is applicable.
© 2009 The Author. Journal compilation © 2009 Blackwell Publishing Ltd. Ratio Juris, Vol. 22, No. 1
(ii) Either N is a product of one or more of the system’s authoritative

law-generating organs (such as a legislature or an administrative agency
or a court or a constitutional assembly), or it is free-floating.6
Now, the upshot of this complex test—in accordance with Incorporation-

ism and in opposition to Exclusivism—is that moral principles which serve
as justificatory bases for adjudicative and administrative decisions within
some legal system are correctly classifiable as laws of that system. However,
the test is not an ad hoc device that begs the question against Exclusivism. Its
pertinence extends well beyond the debates between Exclusivists and their
opponents. My test withholds the status of laws from norms that are plainly
not laws, and it ascribes that status to norms that are perceived as laws by
virtually all Exclusivists and other jurisprudential theorists. Most notably, it
results in the classification of customary norms as laws if those norms are
regularly treated as justificatory bases for adjudicative and administrative
decisions. In my past writings on Incorporationism—which articulate at
length the underlying rationale for the two-pronged test outlined above—I
have challenged Exclusivists to come up with an equally good explanation
of the status of customary norms. Specifically, the Exclusivists have to
explain why such norms qualify as laws that belong to any legal system in
which they are regularly invoked as binding bases for officials’ determina-
tions, whereas foreign statutes and sporting associations’ rules do not
similarly qualify when they are so invoked.
Lefkowitz misconstrues my challenge to Exclusivism. He devotes most
of his article to arguing that customary norms are capable of being
authoritative in a Razian sense (Lefkowitz 2005, 409–16). On that particular
point, his arguments are deft and persuasive. However, they constitute an
ignoratio elenchi, for I have nowhere ever supposed that customary norms
cannot be authoritative in a Razian sense. My challenge to Exclusivism
does not rest on such an erroneous supposition; it has issued instead as a
demand for an explanation. That is, I have called for Exclusivists to explain
the point mentioned at the end of the preceding paragraph. They have to
explain the differentiation between many customary norms on the one
hand and foreign laws or sporting associations’ rules on the other hand.
Exclusivists cannot meet my challenge by pointing out that customary
norms are capable of being authoritative in a Razian sense. After all, as
Lefkowitz and I (and everyone else) agree, foreign laws and sporting
associations’ rules are likewise capable of being authoritative in that sense.
Hence, the bulk of Lefkowitz’s article—though well-reasoned in most other
respects—is beside the point.
6
The term “free-floating” indicates that N is not the product of a contemporaneous formally
authoritative institution such as a foreign legal system or a sporting association or Harvard
University.
Lefkowitz does eventually address the relevant question, albeit briefly.

My rejoinder to him here will concentrate entirely on the one principal
paragraph in which he seeks to come to grips with that question. He begins
the paragraph as follows:
The point Raz wants to make when discussing foreign laws is that we cannot infer
from a legal system having a rule that gives legal effect to some standard that the
standard has thereby been made part of the legal system. [. . .] Raz uses conflict-
of-law doctrines that direct a court to apply foreign law when settling certain types
of disputes to illustrate this point. For example, that a U.S. court is directed to apply
Italian law when settling certain cases brought before it does not necessarily entail
that the Italian law in question has thereby become part of U.S. law. (Lefkowitz
2005, 417)
What Lefkowitz says in these sentences is of course true, but he is

recounting the explanandum rather than providing an explanans. The very
thing that stands in need of explanation is the fact that the jurisprudential
upshot of the conflict-of-law doctrines strikingly differs from the juris-
prudential upshot of any law-ascertaining criteria that direct legal officials
to invoke and apply customary norms of certain types in order to resolve
disputes of certain types. Why does the effect of the latter criteria consist
in directing legal officials to invoke and apply laws of the jurisdiction in
which those laws (the customary norms) are brought to bear on disputes,
while the effect of the conflict-of-law criteria consists in directing legal
officials to invoke and apply norms that are not laws of the jurisdiction
in which those norms are brought to bear on disputes? Lefkowitz states
this difference clearly enough, but his task is to explain it. My own
explanation of the difference, encapsulated in the two-pronged test delin-
eated above, focuses on the property of free-floatingness. Unless the
Exclusivists join me in focusing on that property, they will leave wholly
mysterious the difference which I have challenged them to elucidate. (We
shall shortly return to the possibility of their adverting to exactly that
property.)
Lefkowitz, in the paragraph on which I am concentrating, continues as
follows:
[F]oreign law can sometimes be incorporated into the law of a different legal
system. Indeed, Raz himself identifies in the United Kingdom’s Human Rights
Act 1998 (which came fully into force in 2000) an example of what he believes to
be the incorporation of foreign law—specifically, various rights enumerated in the
European Convention on Human Rights—into the law of the United Kingdom.
More important than his judgment in this particular case, however, is the fact that
there is nothing in Raz’s theory of law that rules out the incorporation of foreign
law. It is both necessary and sufficient for a norm’s being eligible to be incorpo-
rated as law that it is capable of being authoritative, and this is a property that
both foreign laws and the rules of sporting associations typically have. (Lefkowitz
2005, 417)
Lefkowitz is here using the term “incorporated” (along with the cognate
term “incorporation”) in a sense markedly divergent from the sense in which
that term is used by Incorporationists when they insist that moral principles
can be incorporated into the law. The debate between Incorporationists 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 much. Indeed, in one of my earlier
discussions of these matters, I explicitly note that Scott Shapiro—one of the
most percipient proponents of Exclusivism—allows “that a moral principle
can be a legal norm if it has been enacted or affirmed in some formal source
such as a statute or a judicial ruling or an administrative regulation” (Kramer
2004, 3, n. 2). Hence, when Incorporationists oppose Exclusivism by insisting
that moral principles can be incorporated into the law, they are not talking
about incorporation along the lines described by Lefkowitz. They are not
pushing against an open door.
Instead, they are advancing the claim that was conveyed by the two
italicized sentences in the second section of this article. Those sentences echo
a number of passages in my previous expositions of Incorporationism. In
one such passage, for example, I write as follows:
By regularly adverting to the fundamental requirements of morality as the founda-

tion for their choices of dispositive norms in hard cases, the officials [in a moderately
Incorporationist legal system] engage in an Incorporationist practice that absorbs all
genuine precepts of morality into the law regardless of whether those precepts have
been discretely identified and designated as such. (Kramer 2004, 139–40)
Similarly, I have affirmed that
moral principles can get incorporated into the law even if they are not correctly
invoked on most occasions when they are applicable. [. . .] Whether or not the
officials [in a legal system] make any correct judgments of application when they
resort to their moderately Incorporationist criterion [for ascertaining the law in
hard cases], their acceptance of it has endowed the true principles of morality with
the status of laws that are to be brought to bear on the controversies in hard cases.
(Kramer 2004, 73)
Now, when “incorporated” and its cognates are construed in accordance

with these quoted statements and with my other characterizations of
Incorporationism, all Exclusivists and Incorporationists can agree that
customary norms are variously incorporated into most legal systems and
that no foreign statutes or sporting associations’ rules are so incorporated.
(There is no need for me to maintain that foreign statutes and sporting
associations’ rules cannot be incorporated into the law of any jurisdiction, in

the pertinent sense of “incorporated.” Rather, the claim here is simply that
they are not so incorporated, within any legal system that is known to me.
On that point, Exclusivists and Incorporationists agree.) Yet, as has been
stated, the difference between customary norms and foreign laws or sporting
associations’ rules is something that stands in need of explanation. The task
of explaining that difference is what I have challenged the Exclusivists to
perform. As we have seen, their focus on Razian authoritativeness does not
contribute at all to any germane explanation. Unless the Exclusivists
embrace my own explanation, they will apparently fail to meet my
challenge.
Suppose, then, that Lefkowitz were to reply to me in the following vein.
He might acknowledge that the property of free-floatingness is what
relevantly distinguishes customary norms from foreign laws or sporting
associations’ rules; but he might then criticize my two-pronged test for the
status of norms as laws, by alleging that that test is incomplete. He might
assert that the words “it is free-floating” in the second prong of my test
should be expanded to “it is free-floating and capable of being authorita-
tive in a Razian sense.” He would be accusing me of having omitted a
crucial condition for the status of any norm as a law that belongs as such
to the juridical system in which the norm is invoked and applied. That
crucial condition, of course, would rule out the incorporation of moral
principles into the law of any jurisdiction.
If Lefkowitz were to advance such a rejoinder, two responses would be
appropriate (in an ascending order of importance). First, Raz’s references
to foreign laws are at best extremely misleading. What those references do
is to indicate that some norms can be relied upon as binding bases for
adjudicative or administrative decisions even though those norms are not
laws of the jurisdiction in which they are applied. However, when we
explore why those norms do not count as laws of that jurisdiction, and
when we discover that the determinative factor is that they are not
free-floating, we have come up with an explanation that differentiates
those norms sharply from moral principles. Hence, since Raz refers to
foreign laws in the course of endeavoring to explain why moral principles
cannot belong to any juridical system as legal norms, his references to
those laws are highly misleading.
Second, and much more important, Lefkowitz will have left himself
vulnerable to an objection that I have raised before against Shapiro and
other Exclusivists.7 Purely arguendo, I shall accept here the Razian thesis
7
See Kramer 2004, 61–4. For some largely similar objections to Raz and Shapiro respectively,
see Dworkin 2002, 1667; Waluchow 2000, 76. See also Coleman 2001, 143—though, as I argue
in Kramer 2003, 500, the particular variety of Incorporationism espoused by Coleman does not
leave him in a position to press such an objection successfully.
that every legal system claims to be possessed of legitimate moral author-

ity and that every legal system must consequently be capable of possessing
such authority. Even given this Razian thesis—both conjuncts of which I in
fact reject8—any conclusion concerning what must be true of every law
within any legal system is a non sequitur. As I have argued at length
elsewhere (Kramer 2004, 61–4), there are no grounds whatsoever for
assuming that the implicit or explicit quantifier in any tenable proposition
about the potential authoritativeness of individual laws is universal rather
than plurative. That is, there are no grounds whatsoever for assuming that
such a proposition pertains to all individual laws rather than to most
individual laws. From the premise that every legal system must be capable
of possessing Razian authoritativeness, no conclusion follows to the effect
that every legal norm must be capable of possessing such authoritativeness.
A conclusion about most legal norms undoubtedly does follow, but not a
conclusion about all such norms. Hence, if Lefkowitz were to insist that my
two-pronged test for the status of norms as laws should declare that a
necessary condition for such a status is that a norm can be authoritative in
a Razian sense, he would be seeking to foist upon me a non sequitur that
has beguiled far too many Exclusivists. My test is not in need of any
supplementation.
4. Giudice’s Defense of Exclusive Legal Positivism

Whereas Lefkowitz takes aim at Incorporationism, Giudice concentrates
principally (though not solely) on Inclusivism. Furthermore, whereas
Lefkowitz is concerned primarily with the question whether norms of
certain kinds can be authoritative in the Razian sense, Giudice focuses not
on Raz’s conception of authority but on other lines of argument in some
relevant writings by Raz.
4.1. The Descent into Rule-Skepticism

With Canada and the United States chiefly in mind, Giudice addresses
himself to constitutional provisions that articulate requirements and
prohibitions in straightforwardly moral language (rights to equal protec-
tion and due process, prohibitions on cruel punishments, and so forth).
He readily accepts that judges and other legal officials have to engage
in moral reasoning when they interpret and apply those constitutional
provisions, but he maintains that the moral prohibitions and require-
ments in those provisions do not constitute criteria for legal validity.
8
I argue sustainedly against the first conjunct in Kramer 1999, chap. 4. My queries about the
second conjunct run along basically the same lines as the queries in Dworkin 2002, 1667–9.
Instead of operating as such criteria, the requirements and prohibitions

are formally recognized reasons for legal officials to alter or eliminate
various laws.
Giudice draws heavily here on Raz’s account of directed powers.
According to that account, a directed power is “a law-making power
coupled with a duty to use it, and to use it to achieve certain objectives
and only them [. . .]. Directed powers are the paradigmatic case of the
law providing for its own development. Here we find the law providing
reasons for the introduction of new legal rules, yet those [rules] are not part
of the law until enacted by the empowered authority” (Raz 1995, 242). With
reference to morally significant constitutional provisions, Giudice elabo-
rates on Raz’s remarks as follows:
Examples of objectives to be achieved include the protection of rights of moral

significance. Raz’s notion of a directed power explains well the appeal to such
rights in cases of judicial review, where subordinate legislation is subject to
constitutionally recognized moral standards and considerations. Often the result is
that subordinate legislation is modified or altered to achieve the recognized
objectives of moral significance, yet such modifications or alterations do not come
into existence until affected by official decision [. . .]. In other words, for a law or
statute to become invalid by virtue of being unconstitutional, an official interven-
tion is required. For example, a court might strike down the statute or a legislature
might repeal or modify the law in light of perceived non-conformity with the
constitution. (Giudice 2008, 99)
One of the principal shortcomings of this argument is that Giudice pro-

vides no justification for treating moral requirements differently from other
requirements. Consider, for example, a constitutional provision which
specifies that a tax-imposing statute is of no legal force unless it has been
passed by a two-thirds majority in each legislative chamber. Would Giudice
think that such a provision vests each court with a directed power to alter
the law on any occasion when the court is presented with a tax-imposing
enactment that has not satisfied the two-thirds requirement, and would he
think that that requirement is simply a reason for the exercise of the
directed power rather than a criterion for legal validity? He presumably
would not think so, since such a characterization of the two-thirds provi-
sion is outlandish. The only credible understanding of the specified con-
stitutional provision is that it sets forth a criterion for the legal validity of
any tax-imposing enactment. Yet, if Giudice would embrace that under-
standing of the two-thirds requirement, he manifestly needs to explain
why he does not take a similar view of the moral requirements imposed by
many liberal-democratic constitutions. He does not broach this problem at
all, and he therefore does not attempt to offer any relevant justification for
his approach.
Giudice seeks to illuminate the role of morally significant constitutional
provisions by drawing an analogy between the workings of those
provisions and the workings of laws that prohibit torts such as trespasses.
He develops the analogy as follows:
Under Canadian law, if you trampled on my garden and killed my flowers, you
would be guilty of trespass causing destruction, and would be liable to pay me
damages. Yet, I could not forcibly take money off you or break into your house to
get it, even though under law I am entitled to monetary damages from you. In fact,
to use force to make you pay would be assault, and to break into your home would
be theft, both of which themselves are crimes. Rather, before I can recover from you,
a judge must find in my favour and order you to pay. The law itself, even though
it is clear and moves in a settled and determinate way from damages to property
to personal liability to pay, requires an official intervention or action to make it so.
[. . .] This is analogous to how constitutionally protected rights of moral significance
work. Even though they are recognized in law and enforced by officials, similar to
our laws about trespass and liability, to serve as grounds for effecting any changes
or alterations in law they must be officially upheld in each case. (Giudice 2008,
99–100)
This passage is problematic in several respects. One relatively minor point

is that the legal context which it recounts is wholly contingent. In some
American states, victims of trespasses and vandalism can lawfully resort to
active self-help in a number of circumstances. Many Americans are not
legally required to show the same level of docility as Canadians. Even
more important are two other points.
First, Giudice is begging the question by assuming that decisions
which implement the morally significant provisions of constitutions will
have introduced “changes or alterations in law.” Precisely the point of
contention between Exclusivists and Inclusivists is whether those deci-
sions do modify the law or whether they instead serve to recognize the
law as it stands when the decisions are rendered. Giudice cannot settle
that point of contention by simply taking for granted the Exclusivist
position on it.
Second, as Giudice recognizes in a footnote, there is a major disanalogy
between the workings of the anti-trespassing laws and the workings of the
morally pregnant constitutional provisions: “While it is true that a general
right to recover for destruction caused by trespass exists before any
infractions occur, A’s particular right against B for a specific offence does
not exist before a court orders damages to be paid or restitution made”
(Giudice 2008, 99–100, n. 9). With reference to the Canadian legal context
recounted by Giudice, his description of the workings of the anti-
trespassing laws is correct and untroubling. There is nothing rule-skeptical
in that description. Particular instantiations of the general right to damages
do indeed have to be brought into existence through judicial decisions.
Until those decisions are rendered, the instantiations of the general right
exist only in posse as Hohfeldian liabilities (Hohfeldian liabilities which the
courts are legally duty-bound to convert into particular rights through the
exercise of adjudicative powers).9 Very different is the situation pertaining

to the morally pregnant constitutional clauses. Applications of those
clauses directly result not in the creation of particular entitlements but in
the official recognition of general standards. When somebody maintains
that the upshot of those applications is the creation (rather than the
recognition) of general standards, he or she is flirting with rule-skepticism.
After all, Giudice once again faces the formidable problem of distin-
guishing between moral requirements and procedural requirements. If he
really thinks that the decisions that correctly apply a morally significant
constitutional provision will have changed the general law, then he has
no basis for declining to think the same about the decisions that correctly
apply the two-thirds requirement for the validity of tax-imposing stat-
utes.10 According to him, then, no tax-imposing enactment is ever a valid
law until it is deemed by a court or an administrative agency to have
satisfied the two-thirds requirement. Only at that point does a tax-
imposing statute as a valid law come into existence. Moreover, only with
subsequent adjudicative and administrative decisions does that statute
exist thereafter, for those decisions involve at least implicit affirmations of
the statute’s legal validity and thus involve at least implicit applications
of the two-thirds criterion (or implicit applications of adjudicative rulings
that have themselves applied that criterion).11 In other words, like
Kenneth Himma—a fellow Exclusivist12—Giudice has turned out to be
a thoroughgoing rule-skeptic. Like the extreme Legal Realists, he is
committed to the proposition that general laws exist only as discrete
decisions.
4.2. On Regularity
Three decades ago, Joseph Raz challenged Inclusivists and Incorporation-
ists to explain how we can distinguish between situations in which judges
resort to moral principles in order to modify the law and situations in
which judges resort to moral principles as standing legal norms (Raz 1979,
9
Throughout this section, I am taking no account of the possible occurrence of mistaken
decisions by the courts. Were I to take account of that possibility, my discussion would
become more involuted; but the involutions would be needless, since the main bearings of my
rejoinder to Giudice would not be affected.
10
What is more, Giudice would be mired in rule-skepticism even if he could pertinently
distinguish between moral requirements and procedural requirements. After all, the basic
moral requirements laid down by certain constitutional provisions must typically be satisfied
by all valid laws within a jurisdiction (obviously including the valid tax-imposing statutes, for
example).
11
Rule-skepticism is unremittingly corrosive. If it were true that every general standard exists
only as an array of case-by-case decisions, then it would also be true that every such decision
in its precedential role exists only as an array of further case-by-case judgments.
12
For my objections to Himma’s rule-skepticism, see Kramer 2004, 119–26.
47, n. 8). Some years ago, I responded to Raz’s challenge (Kramer 2004,
87–91). Giudice concentrates on the following portion of my response:
[W]hen the operations of the officials’ system include a regular practice of adjusting
source-based norms in light of the requirements of morality, then adjustments along
those lines will be applications of existing legal requirements rather than transfor-
mations thereof. Any such adjustment will consist in the prioritization of one kind
of legal norm over another, a prioritization ordained by the officials’ Rule of
Recognition. Similarly, when the operations of their system include a regular
practice of settling previously unclarified points of law by reference to moral
principles, any instance of settling such a point of law in that fashion is an
application of some existing norm(s). (Kramer 2004, 88–9)
The gist of my rejoinder to Raz is as follows. If a practice of resorting to

moral principles as law-ascertaining criteria or as substantive bases for
legal decisions is not yet regularized, then the principles cannot yet have
acquired the status of standing laws (as opposed to norms that are invoked
ad hoc). Their status as law-ascertaining criteria or as substantive legal
norms cannot yet have become established, because there is not yet any
network of relevant legal obligations under which the recourse to those
principles is required. The regularization of the practice alters that very
aspect of the situation. When legal officials invoke moral principles in
certain types of circumstances regularly—rather than isolatedly or
erratically—and when an official’s failure to invoke a moral principle in
such circumstances will usually elicit criticism (and perhaps other disci-
plinary measures) from his fellow officials, each official is under legal
obligations to apply moral principles as law-ascertaining criteria or as
substantive legal norms in the specified types of circumstances. Before any
such obligations have materialized, moral principles have not yet acquired
the status of standing laws in the relevant jurisdiction. After some such
obligations have materialized, moral principles have acquired that status.
Giudice quotes the passage above from my 2004 book in order to take
exception to my way of countering Raz’s challenge:
If occasional and infrequent legal references to morality amount to modification or

amplification of law, then if such occasional and infrequent references become a
regular practice, the proper conclusion to draw is that there now exists a regular
practice of amplifying or modifying law by reference to moral principles. Regular practice
simply indicates that a once irregular practice of subjecting legal norms to moral
standards and considerations which amounted to amplification or modification of
law has now become a regular practice of subjecting legal norms to moral standards
and considerations which amounts to amplification or modification of law. (Giudice
2008, 101)
Either Giudice is begging the question, or else he has misunderstood the

point of my response to Raz. He is begging the question if he thinks that
what he has said here is a refutation of my retort to Raz. His remarks
presuppose that the regular invocation of moral principles by legal officials

in their law-ascertaining activities does not involve the incorporation of
those principles as law-ascertaining criteria or as legal norms. He here
offers no argument in support of that Exclusivist tenet; he simply takes it
as given. Hence, if he is aiming to refute my riposte to Raz, he is flagrantly
begging the question.
Yet, if Giudice is not aiming to refute my rejoinder to Raz, it is not
clear what he is trying to do in the passage which I have quoted from
his article. Perhaps he aspires to show that Exclusivists on their own
terms can make sense of the distinction that I have drawn between
irregular invocations and regular invocations of moral principles by legal
officials. If his aspiration does run along those lines, then he has mis-
apprehended the dialectical situation. My retort to Raz is not a criticism
of Exclusivism; rather, it is a defense of Inclusivism and Incorporation-
ism. It demonstrates that Raz was wrong when he presumed that Inclu-
sivists and Incorporationists would not be able to distinguish between (i)
situations in which legal officials refer to moral principles discretionarily
to modify the law and (ii) situations in which the officials are obligated
to refer to moral principles as law-ascertaining criteria or as substantive
legal norms. As I have endeavored to reveal, Inclusivists and Incorpo-
rationists can in fact explicate that distinction quite straightforwardly.
One of Raz’s central objections to their doctrines has thus crumbled. In
so responding to that objection, I have not been endeavoring to argue
that Exclusivists are themselves unable to account for the distinction
between irregular invocations and regular invocations of moral principles
by legal officials. Hence, if Giudice is striving to show that the Exclu-
sivists can indeed expound that distinction on their own terms, he is not
engaging with me at all.
Giudice further fails to engage with me when he writes that
perhaps the appeal to regular practice is meant to capture the idea that where there
is a regular practice of adjusting legal norms in light of the requirements of
morality, or settling unclarified points of law by reference to moral principles,
officials can safely predict or legitimately expect such adjustments or clarifications
to be made, and so can alter their practices accordingly without needing to wait
for such adjustments and clarifications to be made explicitly or authoritatively.
(Giudice 2008, 102)
Giudice here broaches an idea that is nowhere suggested in any of my

writings and that is at odds with much of the argumentation in the second
and fourth chapters of my 2004 book. Instead of peddling that idea, my
discussion of the regularity of officials’ practices has been making the
following point. (For the sake of stylistic simplicity, I shall state the point
here solely in Incorporationist terms. However, it can be extended quite
straightforwardly to cover Inclusivism as well.) Lacunae are present in the
source-based law of any jurisdiction,13 and legal officials have to decide

cases that fall within those lacunae. Where do they turn for the norms by
reference to which they resolve those cases? If they in their discretion turn
sometimes to morality and sometimes to astrology and sometimes to
public opinion polls and sometimes to the laws of ancient Babylon and
sometimes to various other arrays of norms, and if the unpatterned
heterogeneity of the norms for resolving hard cases is generally perceived
by the officials as legitimate, then it is false to say that moral principles
have become incorporated into their legal system as norms which they are
legally bound to apply in cases that are uncovered by the source-based law.
There is no legally established practice of resorting to such principles as
binding bases for decisions in hard cases. If on the other hand the officials
turn regularly in hard cases to morality, and if they generally perceive the
recourse to moral principles in such cases as something which they are all
bound by their practices as officials to undertake, then the principles of
morality have become incorporated into the law through the regularized
and obligatory marshaling of them as supplements to the source-based
legal norms. (In this thumbnail summary, I have had to omit any mention
of complicating factors such as the hierarchical structure of most legal
systems and the occurrence of erroneous decisions by legal officials. I
explore those complexities at length in the second and fourth chapters of
Kramer 2004.)
4.3 The Descent into Rule-Skepticism again

I have elsewhere sought to rebut Kenneth Himma’s view that no norm is
legally valid in the United States unless it conforms to what the US
Supreme Court takes to be the morally best interpretation of each sub-
stantive protection in the American Constitution (Kramer 2004, chap. 4).
Himma has propounded such a view in support of his claim that the
decisions of the ultimate court in any jurisdiction are uniquely determi-
native of what the law is there. Parlaying that claim into Exclusivism, he
contends that moral principles never genuinely enter into the law of any
jurisdiction; instead, what enter into the law are an ultimate court’s
interpretations of those principles.
Giudice accepts that Himma has overstated the role of ultimate tribunals,
but he seeks to vindicate Himma’s basic point within a more capacious
understanding of legal officials’ activities:
It is true that Supreme Court decisions or interpretations of a constitution do not

exhaust positive or practiced constitutional law. Yet the more accurate explanation
13
The phrase “source-based law” refers to legal norms that satisfy the first disjunct in the
second prong of my test for the status of norms as laws.
of the subordinate [law-ascertaining] criteria is still official practice. Supreme Court

judges are not the only officials in a legal system who interpret a constitution, and
not all constitutional questions or issues are resolved by or make it to the Supreme
Court. Officials interpreting and practicing legal norms under a constitution also
include lower-court judges, legislators, immigration officers, state, provincial, and
federal prosecutors, health officers, and any other official charged with the admin-
istration or implementation of legal norms. When legislation or legal norms do not
come before the Supreme Court for binding constitutional interpretation, their
existence and validity still depend on the practice of officials—it is just that these
officials are not Supreme Court judges [. . .]. With a broader view of official practice
in place, why should we opt for Kramer’s separate claim that subordinate criteria
for the existence and validity of law might also include bases such as the objective
correctness of norms as moral principles? (Giudice 2008, 103)
With these remarks, including the rhetorical question at the end, Giudice
is not declaring (quite unexceptionably) that moral principles can never
be law-validating criteria or substantive legal norms unless they are
regularly treated as such by legal officials. Rather, he is advancing essen-
tially the same thesis—a highly objectionable thesis—that has been
advanced by Himma. That is, he maintains that moral principles can
never genuinely be law-validating criteria, because the interpretations of
those principles by sundry legal officials are instead what serve as the
grounds for legal validity. By taking this position, Giudice has followed
Himma in lurching once again toward rule-skepticism. After all, if he
thinks that the case-by-case determinations of legal officials concerning
the contents of moral principles always stand in lieu of those contents
themselves as grounds of legal validity, there is no basis for his declining
to draw a similar conclusion about other apparent law-validating stan-
dards. If for example he thinks that legal officials’ case-by-case interpre-
tations of the contents of equal-protection requirements always displace
those requirements themselves as determinants of legal validity, there is
no basis for him to decline to take a similar view of legal officials’
case-by-case interpretations of the two-thirds requirement that was dis-
cussed earlier. He has thus committed himself to the rule-skeptical propo-
sition that there are no general standards for law-validation. Everything
that appears to be such a standard, such as an equal-protection require-
ment or a two-thirds requirement, is not really operative as such. Legal
validity always ensues instead from the case-by-case judgments of adju-
dicators and administrators. So, at any rate, Giudice must contend. Like
Himma, in other words, he has in effect returned to the bad old days of
extreme Legal Realism.
Giudice plunges even further into extreme rule-skepticism in the closing
pages of his article (Giudice 2008, 104–6). He there discusses the potential
occurrence of preposterous decisions by adjudicators or administrators.
Some such decisions, involving interpretations of morally pregnant con-
stitutional provisions, would be preposterous for moral reasons; as a
matter of substantive morality, the interpretations would be not just wrong

but outlandishly wrong. Now, whereas the general standards for legal
validity in virtually any jurisdiction with morally pregnant constitutional
clauses will include a criterion which prescribes that officials’ mistaken
interpretations of those clauses are legally binding unless the errors are
overturned by superior officials, we can suppose that there is also included
a criterion that withholds such bindingness from egregiously mistaken
interpretations. Adjudicative or administrative decisions which err outra-
geously in such matters are devoid of legal validity.
Giudice does not doubt that those preposterous decisions are devoid of
legal validity in virtually any liberal-democratic jurisdiction, but he of
course does not wish to concede that such a state of affairs is due to the
operativeness of any moral grounds for legal validity. He declares that
instead it is due to the practices of the juridical officials in each country,
who will decline to ascribe legal bindingness to ludicrously erroneous
interpretations of the moral requirements laid down in their country’s
constitution. The officials’ case-by-case refusals to acquiesce in such inter-
pretations are what deprive those interpretations of legal validity; accord-
ing to Giudice, there is consequently no reason for us to think that the
invalidity of the morally risible interpretations is due to the operativeness
of any moral criteria among the officials’ general standards for ascertaining
the law.
Once again, the problem that confronts Giudice is the wholesale
extrapolability of his position. If he were correct about the inoperative-
ness of moral criteria for the validity and invalidity of legal norms, and
if he were thus correct in suggesting that legal officials’ case-by-case
applications of those criteria are instead what nullify preposterous judg-
ments, then every other law-validating standard would likewise be inop-
erative. Legal validity or the absence of legal validity would always be
due solely to case-by-case determinations, regardless of whether those
determinations pertain to moral standards or to other standards. For
example, suppose that some court has to determine whether a tax-
imposing enactment is a valid law, and suppose that the court commits
an egregious error in construing the two-thirds requirement. The court
rules that that requirement is satisfied by a 51% majority in each legis-
lative chamber. Let us assume further that other legal officials deem the
court’s woefully erroneous judgment to be devoid of legal bindingness;
they therefore deem the tax-imposing enactment to be devoid of legal
validity. According to Giudice’s line of analysis, the enactment was not
legally invalid at any point until the other officials began to treat it as
such. Specifically, it was not legally invalid at the time of the errant
court’s ridiculous decision; the enactment became legally invalid only
when other legal officials opted to disregard that decision and to treat the
enactment as a nullity.
Such a rule-skeptical account of the two-thirds requirement is unsus-

tainable. Among the reasons for rejecting it is that such an account is
inconsistent with the proposition that the ridiculously mistaken decision
was indeed mistaken. If the two-thirds requirement does not exist and
operate at all as a norm that is separate from the case-by-case decisions that
profess to apply it, then there is no independent standard by reference to
which any of those decisions can be classified as erroneous. No sensible
legal philosopher would subscribe to such an absurd account of the
two-thirds requirement. Given that Giudice is plainly a sensible and
incisive legal philosopher, he presumably does not subscribe to any rule-
skeptical understanding of the two-thirds requirement. Quite puzzling,
then, is his embrace of rule-skepticism when he discusses moral criteria for
legal validity.
5. Conclusion
My primary concern in this article has been to defend Inclusive Legal
Positivism and Incorporationism against the criticisms leveled at them by
two of the most perceptive champions of Exclusive Legal Positivism. Along
the way, however, I have also sought to indicate a few of the many
objections that can be posed against Exclusivism. Lefkowitz and Giudice
have argued with considerable proficiency in support of the Exclusivist
position, but their efforts do not vindicate that position. At best, Exclusive
Legal Positivism is a doctrine marked by “heroic artificiality” (Dworkin
2002, 1075). At worst, it mires its proponents in the swamps of extreme
rule-skepticism.
Churchill College
Storey’s Way
Cambridge CB3 0DS
United Kingdom
E-mail: mhk11@hermes.cam.ac.uk
References
Coleman, Jules. 2001. The Practice of Principle. Oxford: Oxford University Press.
Dworkin, Ronald. 2002. Thirty Years On. Harvard Law Review 115: 1655–87.
Dworkin, Ronald. 2006. Justice in Robes. Cambridge, Mass.: Harvard University
Press.
Giudice, Michael. 2008. The Regular Practice of Morality in Law. Ratio Juris 21:
94–106.
Kramer, Matthew. 1999. In Defense of Legal Positivism. Oxford: Oxford University
Press.
Kramer, Matthew. 2003. Review of Jules Coleman, The Practice of Principle.
Cambridge Law Journal 62: 495–501.
Kramer, Matthew. 2004. Where Law and Morality Meet. Oxford: Oxford University
Press.
Kramer, Matthew. 2007. Why the Axioms and Theorems of Arithmetic are Not
Legal Norms. Oxford Journal of Legal Studies 27: 555–62.
Lefkowitz, David. 2005. Customary Law and the Case for Incorporationism. Legal
Theory 11: 405–20.
Raz, Joseph. 1979. The Authority of Law. Oxford: Clarendon.
Raz, Joseph. 1995. Ethics in the Public Domain. Revised Edition. Oxford: Oxford
University Press.
Waluchow, Wilfrid J. 2000. Authority and the Practical Difference Thesis: A Defense
of Inclusive Legal Positivism. Legal Theory 6: 45–81.

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Ratio Juris. Vol. 22 No.

1 March 2009 (44–61)

Moral Principles and Legal Validity

Inclusivists/Incorporationists and Exclusivists),2 but the importance and

2. Some Background Remarks

norms. While gladly acknowledging that moral principles often get

3. Lefkowitz on Customary Norms as Legal Norms

(ii) Either N is a product of one or more of the system’s authoritative

Now, the upshot of this complex test—in accordance with Incorporation-

Lefkowitz does eventually address the relevant question, albeit briefly.

What Lefkowitz says in these sentences is of course true, but he is

By regularly adverting to the fundamental requirements of morality as the founda-

Similarly, I have affirmed that

Now, when “incorporated” and its cognates are construed in accordance

associations’ rules cannot be incorporated into the law of any jurisdiction, in

that every legal system claims to be possessed of legitimate moral author-

4. Giudice’s Defense of Exclusive Legal Positivism

4.1. The Descent into Rule-Skepticism

Instead of operating as such criteria, the requirements and prohibitions

Examples of objectives to be achieved include the protection of rights of moral

One of the principal shortcomings of this argument is that Giudice pro-

This passage is problematic in several respects. One relatively minor point

exercise of adjudicative powers).9 Very different is the situation pertaining

The gist of my rejoinder to Raz is as follows. If a practice of resorting to

If occasional and infrequent legal references to morality amount to modification or

Either Giudice is begging the question, or else he has misunderstood the

presuppose that the regular invocation of moral principles by legal officials

Giudice here broaches an idea that is nowhere suggested in any of my

source-based law of any jurisdiction,13 and legal officials have to decide

4.3 The Descent into Rule-Skepticism again

It is true that Supreme Court decisions or interpretations of a constitution do not

of the subordinate [law-ascertaining] criteria is still official practice. Supreme Court

matter of substantive morality, the interpretations would be not just wrong

Such a rule-skeptical account of the two-thirds requirement is unsus-

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