Kramer and Inclusive Legal Positivism

Abstract

Abstract Gerald Postema once claimed that, in responding to Dworkin’s critique of Hart’s theory of law, defenders of Inclusive Legal Positivism (ILP) “seemed to have lost contact with the original phenomena, problems, and the theoretical and practical motivations that gave them life.” As one of ILP’s most powerful champions, this indictment extends to Matthew Kramer, whose work includes one of the most robust, insightful defenses of ILP on offer, and whose monumental contributions to legal, political, and moral philosophy are the focus of this volume. The objective of this chapter is to blunt the force of Postema’s indictment of Kramer and his ILP allies, particularly in relation to their long-standing dispute with their Exclusive Legal Positivist (ELP) cousins. It does so by arguing that ILP provides a better, more enlightening account of the nature of law than ELP does. More specifically, it argues that (1) ILP better accounts for the conventional nature of law than ELP does; (2) ILP offers a conceptual map of legal practice that is more consonant than ELP with the self-understanding expressed in the norms and practices of many legal systems; and (3) ILP better accounts for the variety of ways in which law is capable of structuring our practical reasoning and, as a result, serving our moral interests. If the arguments of this chapter are right, then they will have provided what Postema finds missing—good reasons for thinking that Kramer’s subtle and insightful jurisprudential theory was not, in the end, pretty much a waste of time.