10.2307/3505051

Abstract

Inclusive positivists subscribe to the Incorporation Thesis, according to which it is conceptually possible for a legal system to have a rule of recognition that incorporates moral norms. Joseph Raz counters that inclusive positivism is inconsistent with the nature of authority. This influential critique depends on a number of controversial theses about the nature of authority and legal systems. Most conspicuous among these are the Authority Thesis, which asserts that every conceptually possible legal system claims authority, and the Preemption Thesis, which asserts that authority figures (or ought to figure) into practical deliberations by replacing the subject's evaluation of the balance of reasons. In this essay, I challenge an underlying assumption of the Razian critique also depends on a thesis that has gone largely unchallenged in the literature: according to the Instantiation Thesis, law cannot sincerely claim authority unless it is capable of instantiating authority. I argue that this seemingly plausible thesis is false, in part, because there is widespread disagreement among legal officials about what authority is.