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24 Law & Phil. 1 (2005)

handle is hein.journals/lwphil24 and id is 1 raw text is: Law and Philosophy (2005) 24: 1-45 KENNETH EINAR HIMMA FINAL AUTHORITY TO BIND WITH MORAL MISTAKES: ON THE EXPLANATORY POTENTIAL OF INCLUSIVE LEGAL POSITIVISM* (Accepted 5 December 2003) While every positivist accepts that there can be legal systems without moral criteria of legality, exclusive and inclusive positivists disagree on whether there can be legal systems with moral criteria of legality. Exclusive positivists accept the Sources Thesis, according to which it is a conceptual truth that the existence and content of law can always be determined by reference to its sources without moral argument. Inclusive positivists accept the Incorporation Thesis, according to which there are conceptually possible legal systems in which the legality criteria incorporate substantive moral norms in the fol- lowing sense: satisfaction of those norms is a necessary or sufficient condition for a proposition to count as law. The Incorporation Thesis appeals to many positivists because it seems to provide the most perspicuous positivist framework for understanding the role that moral principles play in judicial decision-making in developed legal systems. In particular, the in- clusivist framework seems to permit a more natural explanation *Portions of this essay were presented at Yale Law School as part of the program for the 7th Annual Analytic Legal Philosophy Conference. I am indebted to the following persons for helpful criticisms, comments, ques- tions, and suggestions: Larry Alexander, Jules Coleman, Anthony Duff, John Gardner, Leslie Green, Mark Greenberg, Douglas Husak, Barbara B. Levenbrook, David Lyons, Christopher Morris, Gerald Postema, Scott Shapiro, Roger Shiner, Nicos Stavropoulos, Jeremy Waldron, and Wilfrid Waluchow. I am also indebted to subsequent correspondence with Brian Bix, Leslie Green, Stephen Perry, and Joseph Raz. I am also grateful to Ronald Moore, Laurence BonJour, Arthur Fine, Marc Lange, and Jean Roberts for their comments on a much earlier version of this paper. I am especially indebted to Matthew Kramer for his detailed and insightful comments on an earlier version of this essay and for a particularly com- pelling criticism that forced me to rethink my initial approach to the issues. © Springer 2005