Authority, Meaning and Inclusive Legal Positivism
| DOI | http://doi.org/10.1111/1468-2230.00352 |
| Author | Dale Smith |
| Date | 01 September 2001 |
| Published date | 01 September 2001 |
REVIEW ARTICLE
Authority, Meaning and Inclusive Legal Positivism
Dale Smith*
Jules Coleman, The Practice of Principle: In Defence of a Pragmatist
Approach to Legal Theory, Oxford: Oxford University Press, 2001, 226 pp, hb,
£25.00.
Jules Coleman’s The Practice of Principle,
1
is densely packed with arguments on
most of the major controversies in modern jurisprudence, as well as dealing with a
number of issues in the philosophy of tort law. Part one of the book argues, against
economic analysts of law, that the core of tort law is best understood as embodying
a principle of corrective justice. Coleman does not, however, seek to develop that
principle in any detail, being more concerned with the question of what counts as
an explanation of tort law. Here, he argues in favour of a form of conceptual
explanation that seeks to describe how the concepts central to tort law are related
and how they warrant certain practical inferences. Part two offers the latest
statement of Coleman’s version of inclusive legal positivism, which he seeks to
defend against important objections offered primarily by exclusive legal
positivists. In particular, he argues that inclusive legal positivism is compatible
with both Joseph Raz’s account of authority and Scott Shapiro’s practical
difference thesis, properly understood. He also suggests a distinctive way of
viewing the rule of recognition and its relationship to the practice on which it
depends for its existence, employing the notion of a ‘shared cooperative activity’
(discussed briefly below). Finally, in part three, he defends the methodology of
conceptual analysis against two challenges. The first is that of normative
jurisprudence, which claims that we cannot understand the nature of law by
reflecting on the concept ‘law’, but only by engaging in substantive debate about
the value of having law. The second challenge comes from naturalised
jurisprudence, which advocates an approach to law based wholly or partly on
social science. When responding to these challenges, Coleman seeks not only to
highlight the resources available to conceptual analysis, but also to offer an
improved understanding of the debate between so-called descriptive and normative
approaches to jurisprudence.
I found this book to be an illuminating and enthralling read, and I agree with
significant portions of it. In this review, however, I shall focus on two lines of
argument offered by Coleman in defence of his form of inclusive legal positivism.
One of these is a response to an objection by Raz, while the other is a response to a
criticism of Dworkin’s. Neither, I shall argue, is successful. But even while
ßThe Modern Law Review Limited 2001 (MLR 64:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 795
* DPhil student, Faculty of Law, University of Oxford.
I would like to thank Scott Hershovitz, Samantha Besson, Nicos Stavropoulos and Nick Barber for helpful
discussion of earlier drafts of this review.
1 All page references are to this book, unless otherwise indicated.
To continue reading
Request your trial