Conventions, Disagreements, and (Hart’s) Inclusive Legal Positivism

Abstract

In H.L.A. Hart’s legal positivism, the rule of recognition is a rule that serves as an institutional check to identify 
the various sources of law and to ensure that laws are legally valid and binding. This rule provides us with a 
substantive understanding of two general theses that legal positivism commits to: the Social Fact Thesis and the 
Conventionality Thesis. The former claims that law originates from and is essentially a social fact. The latter states 
that the criteria for the legal validity of a legal system are settled by conventions held by legal officials, understood 
as the convergence of their beliefs and behaviours. According to Hart, the rule of recognition is both the basic 
social fact that makes certain rules part of the law and the very convention adopted by officials. One of the most 
prestigious critics of Hart (and thus of legal positivism), Ronald Dworkin, however, argues that the rule of 
recognition (hereinafter RoR) must be rejected because there are valid legal principles that it fails to recognize as 
part of the law. Furthermore, he argues that there are theoretical disagreements over ‘grounds of law’, which would 
undermine the social convention that officials are subject to and thus destroy RoR itself. 
In response, in the postscript of his The Concept of Law, Hart describes his positivism as ‘soft positivism’ 
(i.e., inclusive positivism), according to which, in every conceptually possible legal system, there could be norms 
that are ascribed legal validity solely because of their moral content, rather than through the institutional check 
sustained by RoR. Specifically, legal principles can be incorporated into the rule of recognition and thus become 
part of the law without compromising its social nature. This statement is deemed the Incorporation Thesis, and 
inclusive positivism is the view that adopts this thesis. To what extent Hart’s inclusive positivism successfully 
responds to Dworkin’s criticism remains a question often disputed within the philosophy of law. 
In this article, I will defend Hart against Dworkin’s objections and answer this question by proposing a 
specific reading of the Incorporation Thesis, namely that the incorporation of moral norms is a necessary but not 
sufficient condition for legal validity.