toh - an argument against the social fact thesis.pdf

8/14/2019 Toh - AN ARGUMENT AGAINST THE SOCIAL FACT THESIS.pdf

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KEVIN TOH

AN ARGUMENT AGAINST THE SOCIAL FACT THESIS(AND SOME ADDITIONAL PRELIMINARY STEPS

TOWARDS A NEW CONCEPTION OF LEGALPOSITIVISM) *

(Accepted 10 December 2007)

I. INTRODUCTION

At least since the publication of Ronald Dworkins inuentialset of articles in the late 1960s and the 1970s, participants in thedebate about the nature of law have commonly assumed a

particular conception of legal positivism. According to thisconception, the central thesis of legal positivism is that theexistence of a law, or the legal validity of a norm, is ultimately amatter solely of some facts about the psychology and/orbehavior of a group of people. Somewhat differently put: thecentral thesis of legal positivism, according to many philoso-phers, is that the ultimate grounds of any legal claim are onlysome facts about the psychology and/or behavior of a group of

people. And by grounds here, I mean the considerations that

* The rst, and very different, incarnation of this material was presented atthe 22nd World Congress of Philosophy of Law and Social Philosophy whichtook place in Granada, Spain in May 2005. I learned from the discussionfollowing my presentation, and from subsequent correspondence with MattKramer, Andrei Marmor, and Jerry Postema. More recently, I have benetedfrom conversations with or comments from Steve Darwall, Adam Leite,Brian Leiter, David McCarty, Scott Shapiro, David Velleman, and ananonymous referee for this journal. I am most indebted to Gary Ebbs who,during three separate conversations, was willing to be a sounding board andalso tried to improve my thinking on many issues discussed herein.

Law and Philosophy Springer 2008DOI 10.1007/s10982-008-9024-z


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justify the relevant legal claim, or the considerations in virtue of which the relevant legal claim is correct or true. 1

Following Jules Coleman ( 2001 , p. 75), I will call this thesisthe social fact thesis. I will argue that the social fact thesisshould not beviewed as the central or themost fundamental thesisof legal positivism as many legal philosophers believe. Instead, itshould be viewed as a particular, and a particularly problematic ,proposal to capture the more fundamental intuitions behind legalpositivism. Those fundamental intuitions are that the mere factthat a norm satises the standards of morality does not indicate

that that norm is a law, and that the mere fact that a norm fails tosatisfy the moral standards does not indicate that that norm is nota law (see Hart 1958, p. 55). Obviously, if the legal validity of anorm were ultimately a matter only of certain behavioral and/orpsychological facts obtaining, then it would not be a matter of itssatisfying the standards of morality. 2 But there may be other, andbetter, ways to capture the fundamental intuitions of legal posi-tivism. My aim in this article is to take some preliminary steps in

carving out a space for an alternative conception of legal posi-tivism that does not adhere to the social fact thesis.

Throughout the article, I will use the term social facts torefer to the empirical facts about human psychology andbehavior, and more generally facts to refer to what philoso-phers often call natural factsi.e. facts of the sort that areposited by explanations in natural and social sciences. I shall usefactual statements to refer to statements that describe or

represent facts, and contrast such statements with what I callnormative statements. My terminology is not meant to indi-cate any meta-normative partisanship, and it is not my intentionin this article to prejudge the question of whether there arenormative or even moral facts, in a sense of facts differentfrom the one I choose to employ in this article.

1 What I do not mean in particular by grounds is the meaning of therelevant legal claim. I believe that there is some tendency to conatemeaning and grounds in Dworkins Laws Empire (1986 ). Notice that we areentitled to conate the two only if we can assume vericationism or someother equally implausible evidentialist conception of meaning.

2 Unless the satisfaction of the moral standards is itself a matter of certainbehavioral and/or psychological facts obtaining.

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I will rst argue that a presumption against the social factthesis is created once we take seriously the following three theses:(i) the distinction, famously made by Hart, between internallegal statements, or the legal statements made by practitionersof law, on the one hand, and external legal statements, or thestatements about laws made by theorists or observers of com-munities governed by laws, on the other; (ii) the normativenature of internal legal statements; and (iii) an inferential gapbetween normative statements on the one hand and factualstatements on the other. The social fact thesis can be interpreted

as a thesis about the grounds of external legal statements or asone about the grounds of internal legal statements. Taken in therst way, it is unproblematic; but taken in the second way, itcannot be stably combined with the conception of internal legalstatements as normative statements. For the existence of theinferential gap between normative statements on the one handand factual statements on the other makes it the case that amongthe grounds of any internal legal statements there must be some

normative grounds as well as some factual ones.I should say at the outset that I cannot offer here decisive

arguments against the social fact thesis (as a thesis about internallegal statements). As a matter of fact, I will be quite brief andperfunctory in my comments in support of the rst two the-sesthe distinction between internal and external legal state-ments, and the normative conception of internal legalstatementsand attend mainly to the third thesis having to do

with the inferential gap between factual and normative state-ments, or the is-ought gap as it is commonly known. Even here,my arguments will be aimed at creating a prima facie case insupport of a belief in the existence of this gap. My excuse for themodest strengths of my arguments is not only the restrictions of space, but also genuine difficulties (and the sheer size) of theissues implicated by the three theses. It would be unreasonable toexpect denitive treatments of them in one article, even if it were

by an author of much greater powers than I. But notice that noneof the three theses is clearly false or outlandish. Actually, each isquite plausible. My goal is to enhance their plausibility suffi-ciently so as to create a presumption against the social fact thesis.

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After establishing a presumption against the social factthesis, I will go on to argue that, contrary to possible initialappearances, the fact that internal legal statements requirenormative grounds does not, by itself, warrant natural lawtheories; and that it may be possible to devise a plausibleconception of legal positivism that recognizes and observes the just-mentioned inferential gap. In support of this last conjec-ture, I will suggest some ways of extrapolating from the viewsof Hart, whom both adherents and opponents of legal posi-tivism see as the prototypical legal positivist who was com-

mitted to the internal version of the social fact thesis. It is notclear to me that that is an accurate characterization. But I willbe less concerned in this article with interpretation than withnegotiating a way, based on Harts views, to explore ways todevise an alternative conception of legal positivism. It is be-yond the ambition of this article to develop a full-edged legaltheory that conrms legal positivism. Instead, I will be pro-posing, based on Harts views, a particular way of conceiving

internal legal statements as normative statements that aredistinct from moral statements. Such a conception of internallegal statements would be a crucial component of a full-edged legal theory that conrms legal positivism, and itfollows that a development of such a conception would be animportant step towards a new conception of legal positivism.One clear virtue of the new conception of internal legalstatements that I will be proposing is that it is able to account

for what Dworkin calls theoretical disagreements in law. Orso I shall argue. 3

3 There are interesting parallels between this article and two recent arti-cles that reach conclusions similar to mine: G.A. Cohens Facts and Prin-ciples ( 2003 ), and Mark Greenbergs How Facts Make Law ( 2004 ). Ibecame aware of these articles only after writing initial drafts of this article,and delving into the similarities and differences would have made thisalready long article even longer. For these reasons, I will not here discuss thearguments of these articles. I hope to have opportunities to get into thecomparisons on later occasions. Let me here note only a few obviousdifferences. Cohens article is not about jurisprudential matters, but isformulated as a criticism of constructivism in political philosophy. But moreimportantly, whereas he pointedly does not rely on the is-ought gap to argue

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II. RELEVANT SENSE OF SOCIAL FACTS

The social fact thesis, and its alleged status as the central thesis of legal positivism, have been articulated in a variety of ways by anumber of legal philosophers over the years. According toDworkin, [l]egal positivism has many different forms, but theyall have in common the idea that law exists only in virtue of somehuman act or decision ( 1977a , p. 70). Similarly, Joseph Razstates: In the most general terms the positivist social thesis is thatwhat is law and what is not is a matter of social fact (that is, the

variety of social theses supported by positivists are variousrenements and elaborations of this crude formulation) ( 1979b ,p. 37). And Gerald Postema: Law is a social fact; what is andwhat is not to count as law is a matter of fact about human socialbehavior and institutions (1982 , p. 165). David Lyons says:Laws are seen [by legal positivists] as brute social facts. Todetermine the existence of a law and what it requires or allows isto engage in an inquiry into the relevant facts (1984 , p. 37;

cf. p. 54). More recently, Jules Coleman has said: Positivismclaims that the possibility of legal authority is to be explained in terms of certain social facts . Call this the social fact thesis; noclaim is more central to legal positivism ( 2001 , p. 75).

By social facts and similar expressions, these writersmean the facts about human psychology and behavior, andthey intend to exclude what could be called normativefacts. For example, Dworkins statement was meant to be a

Footnote continuedfor the need for appeals to norms or principles, I do rely on that gap. As forGreenbergs article, which is on jurisprudential matters, the most obvious differenceis that whereas he takes the need to appeal to norms or principles as a considerationagainst legal positivism, I see it as a consideration in favor of abandoning the re-cently prevalent conception of legal positivism and devising another conception. Inaddition, Greenbergs is a metaphysical argument to show that legal facts arepartly constituted by value facts. He in effects construes the in virtue of or somesuch relationship between contents of laws and their normative grounds or deter-

minants as a metaphysical relationship. Whether there is some such metaphysicalrelationship is something that I mostly bracket in this article because positing such arelationship may prejudge some meta-normative matters. The best meta-normativeconstrual of legal and other normative or evaluative claims may be some form of nonfactualism. For this reason, I have chosen to speak of the relationship betweenlegal claims and their normative grounds as a normative one.



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generalized version of his earlier characterization of legalpositivism according to which whether a law exists in acommunity is a matter of whether a particular norm hasbeen adopted or promulgated by certain social institutions inthat community (see Dworkin 1967, p. 17). These facts aboutthe pedigree of laws do not include normative facts. Andin laying out his particular version of the social fact thesis,which he calls the sources thesis, Raz also did not mean toinclude normative facts among the relevant social facts. Razcharacterizes such facts, or sources, as he calls them, as

follows:A law has a source if its contents and existence can be determined withoutusing moral arguments (but allowing for arguments about peoples moralviews and intentions, which are necessary for interpretation, for example).The sources of a law are those facts by virtue of which it is valid and whichidentify its content. This sense of source is wider than that of formalsources which are those establishing the validity of law (one or more Acts of Parliament together with one or more precedents may be the formal sourceof one rule of law). Source as used here includes also interpretativesources, namely all the relevant interpretative materials. The sources of alaw thus understood are never a single act (of legislation, etc.) alone, but awhole range of facts of a variety of kinds. ( 1979b , pp. 4748)

What Raz calls sources seem to include more than the factsabout pedigree; they include interpretative sources, which arefacts about peoples normative views and intentionsi.e. factsabout their psychology. But once again, normative facts are notincluded.

This is obscured to some extent by Razs tendency, displayedin the above-quoted passage, and often shared by other legalphilosophers, to contrast social facts only with moral consider-ations. One may wonder as a result about the possibility of socialfacts including some nonmoral normative facts. But that is notthe case. The most important reason for Razs advocacy of thesources thesis is his belief that both the existence and contents of laws must be publicly and fairly easily ascertainable by peoplewithout their delving into the normative considerations that justify the adoption of those laws (see Raz 1979b , pp. 5052;1985 ). Moral considerations are perhaps the most common orobvious of such normative considerations, but there surely can

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be other sorts. More generally, as will become apparent later inthis article, the social facts that the advocates of the social factthesis have in mind are the facts that constitute some commit-mentsin the form of decisions, agreements, conventions,etc.of a group of people to some standards of behavior. Theseare facts about the behavior and psychology of people.

Of course, some philosophers have argued that attributions of psychological states, and of contents more generally, involvedeployment of normative judgments (see e.g. Kripke 1982;Brandom 1994). If they were right, then ascertainments of social

facts themselves would inevitably require appeals to normativeconsiderations. But I believe that I amentitled to set aside this lineof thinking for the following reason. Whatever the nature of psychological attributions, once that task is done, there is aquestion as to whether some further appeals to normative con-siderations are necessary to determine whether a particular lawexists in a community or whether a law has a particular content.According to the common conception of legal positivism, the

answer is negative. It is this answer (or a particular version of thatanswer which I will isolate in the next section) with which I wantto take issue. For this purpose, in the spirit of philosophicaldivision of labor, I will bracket the line of thinking about thenormative nature of psychological attributions.

III. DISTINCTION BETWEEN INTERNAL AND EXTERNALLEGAL STATEMENTS

Those who, like me, consider Harts distinction between internaland external legal statements (and the companion distinction be-tween the internal and external points of view) more illuminatingthan confusing and confused will no doubt notice that there can betwo very different versions of the social fact thesis. One version willbe about the grounds of internal legal statements; the other will beabout the grounds of external legal statements.

Harts distinction can be summarized roughly as follows (seeHart 1961/94, pp. 8991, 102103; cf. Bulygin 1982). Internal legal statements are assertions of law, made from the point of view of an adherent of or a participant in a legal system (e.g. a judge or a lawyer). External legal statements, on the other



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hand, are theoretical statements about individual laws or legalsystems, made from the point of view of an observer (e.g. asociologist or an anthropologist).

Over the years since the publication of The Concept ofLaw , manyhave complained about Harts distinction, and wondered about itscorrectness or usefulness (see e.g. Raz 1981 ; Postema 1982 ,p.170).Ihave even heard it referred to as Harts notorious distinctionbetween internal and external legal statements. I too am not entirelyhappy with all of the ways that Hart explicated and applied thedistinction. 4 Nevertheless, my opinion is that Harts distinction

usefully (albeit roughly)captures thedistinction between statementsthat we make from two different perspectives or points of view thatwe can take with respect to human thought, behavior, and institu-tionsnamely, the deliberative point of view of agents or partici-pants on the one hand, and the intentional or theoretical point of view of observers or theorists on the other. And the distinctionbetween these two pointsofviewhas beenanilluminatingand usefulmainstay of practical philosophy at least since Kant. 5

4 In particular, I nd Harts tendency to equate internal legal statements withassertions of systematized norms wrongheaded, and I will point out later in thisarticle ( XI infra) one important way in which that tendency leads him astray.

5 This Kantian distinction is alive and well, and rightly so, in contemporarypractical philosophy. See e.g. Williams ( 1986 , pp. 5153); Smith ( 1994 , ch. 5);Korsgaard ( 1996 ); Wallace ( 2000 ); Gibbard ( 2003 , p. 186). And I believe thatHarts distinction should be seen in that light. For some indication that Hart

himself saw the distinction along this line, see Hart ( 1986 , pp. 4950). I haveelsewhere addressed Razs very inuential argument about the possibility of what he calls detached legal statements that has been seen to cast doubt onHarts distinction. See Toh ( 2007 ). Postema supports his claim that Hartsdistinction is multiply ambiguous by arguing that Hart speaks of at least twodifferent kinds of external statements ( 1982 , pp. 170171). One kind is used by judges to defend their internal legal statements; another kind is used byanthropologists to defend their factual statements. I will argue later in thisarticle ( XI infra) that Hart should not be interpreted as saying, or at least thathe should not have said, that external statements alone can be used to justifyinternal legal statements. In general, I am persuaded by Eugenio Bulyginsarguments to the effect that some of the leading legal philosophers have ig-nored the distinction at their own peril. See Bulygin ( 1981 , 1982). The latterarticle contains an illuminating survey of the distinction as used in the twen-tieth century deontic logic and legal philosophy.

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An external legal statement by an observer (say, a sociol-ogist or an anthropologist) to the effect that a legal systemprevails in a community, or that a particular law exists orprevails in a given jurisdiction may be challenged. 6 Accordingto legal positivism, as construed by the external version of thesocial fact thesis, a defense of such a statement can be carriedout fully by marshalling facts about the psychology and/orbehavior of the members of the relevant community or jurisdiction. This is to be distinguished from natural lawtheories, according to which the observer would in addition

have to deploy his normative thinking in order to determinewhether the purported legal system or individual law measuresup to some moral standard.

Alternatively, the social fact thesis can be construed as athesis about internal legal statements. According to legal posi-tivism, as characterized by such an internal version of thethesis, in answering from the internal point of view a questionas to whether a law exists, or whether a norm is a law in a given

jurisdiction, a participant (say, a lawyer or a judge) would haveto nd out only whether some facts about the psychology and/or behavior of some people obtain. Such a position would bedistinguishable from supposedly natural law theories, accord-ing to which a participant (rather than an observer) would ndit necessary to deploy his normative thinking to determinewhether a law exists (see e.g. Dworkin 1977a , p. 77; Coleman2001 , p. 103).

I nd the external version of the social fact thesis quiteplausible, and nothing I argue in this article is meant to dis-credit it. For the remainder of this article, I want to set thisexternal version aside, and concentrate on the internal version.By the social fact thesis henceforth, I shall mean only the

6 Once again, in this paragraph and the next, I am setting aside the lineof philosophical thinking about the normative nature of psychologicalattributions. See II supra.



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internal version of the social fact thesis unless I clearly agotherwise. And let me use the term social factualists to referto the legal philosophers who support both legal positivism and(the internal version of) the social fact thesis. 7

One complicating factor in carrying out my argument is thedistinction between exclusive (or hard) legal positivismand the inclusive (or soft) legal positivism, which has beenthe subject of a lively recent jurisprudential debate. As Iunderstand that debate, exclusive legal positivism is the viewthat the grounds of internal legal claims cannot include nor-

mative, and more specically moral, considerations, and mustbe only some social facts; whereas inclusive legal positivism isthe view that the grounds of internal legal claims can (thoughthey do not have to) include normative, or more specicallymoral, considerations in addition to certain social facts. Thisdistinction may lead one to think that my foregoing charac-terizations of legal positivism is accurate only of exclusive legalpositivism, but not of inclusive legal positivism. But that is not

the case. For even inclusive legal positivists believe that moralor normative considerations can be grounds of legal claims onlyin virtue of certain social factse.g. the fact that a group of people are committed to treating certain normative consider-ations as appropriate grounds of legal claims (see Waluchow1994 , ch. 5; Coleman and Leiter 1996, p. 243). 8

7 It is not clear that all recent legal posivists are social factualists. Andrei

Marmor seems to support only the external version of the social fact thesisin Marmor ( 2001 ), though he seems to me to muddy the waters when hesays: The explanatory task [of a philosophical account of the normativityof law] consists of an attempt to explain how rules or conventions can giverise to reasons for action, and what kinds of reasons are involved (32).I take it that the reasons that Marmor is talking about here are strictlymotivating reasons, and not justicatory reasons. See Frankena ( 1958 );Smith ( 1994 , pp. 9498); Darwall ( 2005 ).

8 I actually believe that the grounds of all normative claims, including allinternal legal claims, must include some normative considerations. This isanother reason for thinking that the distinction between the two kinds of legal positivism do not matter for my purposes. But I will not be arguing inthis article for a universal claim about the grounds of all normative claims.Instead, I will be arguing that all normative claims that are conclusions of deductive inferences have to have some normative grounds as well as factual

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espousing anything other than the internal version of the socialfact thesis in this and similar passages (see e.g. Raz 1980, p. 215).The people whose ascertainment of reasons he is concernedabout are the members of a society, not observers of legal sys-tems such as sociologists. It is such participants, according toRaz, who need to appeal to sources, and only sources, indetermining what legal reasons for action they have. It is thesocial fact thesis as a thesis about the grounds of legal claimsmade by such participants with which I want to take issue.

IV. NORMATIVE CONCEPTION OF INTERNAL LEGALSTATEMENTS

Harts distinction between two kinds of legal statements wasaccompanied by his conception of internal legal statements asnormative statements. It can be thought that internal legalstatements and (internal) moral statements 9 are similar in thatboth necessarily purport to proffer reasons for action. Manymoral philosophers believe that moral statements have a con-ceptual or logical link to guidance of action, so that to make amoral statement is necessarily to assert the existence of somereasons for action. 10 This is not the position that all moralstatements actually do succeed in proffering genuine reasons foraction, but rather that all moral statements, including patentlyincorrect ones, purport to do so. The parallel position aboutinternal legal statements would be that all internal legal state-ments purport to proffer reasons for action. Once again, this isnot the position that all internal legal statements succeed inproffering real reasons, but only that they purport to do so. Oneversion of this position would be that not only do internal legalstatements purport to proffer reasons for action, but also thatthey purport to proffer reasons of a particular sortnamely,deontic reasons of obligations, prohibitions, and permissions.

9 An observer may take the external point of view towards some com-munitys mores as well as of its laws. But for simplicitys sake, by moralstatement in the text, I shall invariably mean internal moral statements.

10 This is one plausible way of construing the upshot of G.E. Mooresfamous open question argument. See Moore ( 1903/93, ch. 1); cf. Mackie(1977 , p. 40); Darwall et al. ( 1992 , pp. 116118); Gibbard ( 2003 , ch. 2).

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This last has been an inuential position among legal phi-losophers, many legal positivists included. In fact, Harts signalcontribution to the twentieth century legal philosophy consistedof his arguments to show that if laws prevail among a com-munity of people, then at least some members of that com-munity treat existence of laws as furnishing reasons and evenobligations to act according to such laws, and that theirinteraction with each other is characterized by uses of norma-tive language that display their acceptances of the laws ascreating such reasons and obligations. This is a departure from

the older legal positivist positions of Bentham and Austin thatHart marked clearly:

The Imperative Theory fails to account for a feature of statements of legalobligation which cannot be characterized by the aid of Benthams concep-tual resources of command and habit of obedience. This feature is what isnow called the normativity of such statements and statements of the law orthe legal position of individuals under the law. To say that a man has a legalobligation to do a certain act is to assess his acting or not acting in thatway from the point of view adopted by at least the Courts of the legal systemwho accept the law as a standard for the guidance and evaluation, of con-duct, determining what is permissible by way of demands and pressure forconformity. Such statements are statements of what individuals legallymust or must not do; similarly statements of legal rights are statements of what individuals are legally entitled to do or not to do or to have others door forswear from doing. Such normative statements are the most commonways of stating the content of the law, in relation to any subject matter,made by ordinary citizens, lawyers, judges, or other officials, and also by jurists and teachers of law in relation to their own or other systems of law.

(1966/82 , pp. 144145)In other words, an internal legal statement to the effect that aparticular law exists purports to provide reasonsand morespecically, Hart points out, reasons of the deontic varietytocarry out or forswear certain actions. 11

11 There are certainly moments in Laws Empire when Dworkin seems totreat Harts internal legal statements as descriptive statements that state theexistence of some social facts. See e.g. Dworkin ( 1986 , pp. 3233, 418419n.29). But in some more careful (if not so well-known) moments, Dworkindoes not seem to think that Hart, or any other a legal positivist, has to becommitted to such a characterization of internal legal statements. See e.g.Dworkin ( 1977a , pp. 7071; b, pp. 16).



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Raz summarizes and agrees with Harts normative concep-tion of internal legal statements when he says:

It is common ground to all legal positivists that the law has social sources,i.e. that the content and existence of the law can be determined by referenceto social facts and without relying on moral considerations. This view ledearly positivists such as Bentham, Austin, and to a degree also the AmericanRealists to a reductivist interpretation of legal statements. They claimed thatlegal statements are synonymous with statements about what certain peoplecommanded or willed, or about the chances that a man may come to harmof a certain kind, or about the likelihood that courts will reach certaindecisions. Professor Hart, while accepting the sources thesis, mounted amost formidable criticism of reductivism. He argued that legal statementsare deontic or practical. They are used to demand and justify action andthus function in discourse and argument in ways which no theoreticalstatements could. ( 1979c , p. 53) 12

I believe that Raz is in effect addressing the same issue whenhe says that it is an essential feature of law that it claimslegitimate authority ( 1979a , p. 30). He elaborates: [T]he lawholds itself, i.e. the existence of the relevant legal rule, to be a

reason which tips the balance and provides a sufficient reasonfor the required act. Coleman agrees when he says: The lawpurports to govern our conduct, and to do so in virtue of itsstatus as law ( 2001 , p. 70). Similar claims have been made byother legal philosophers who consider themselves legal posi-tivists (see e.g. Green 1985, pp. 342343; 1999, p. 35; Marmor2001 , p. 25).

12 I will be arguing later in this article that the case for Harts commit-ment to the social fact thesis (or more specically, the sources thesis) is notas obvious as Raz makes it out in this passage. Also, in reading this passage,what should be rmly kept in mind is that while Hart argued againstreductionist analyses of internal legal statements, he was perfectly happywith reductionist analyses of external legal statements. External legalstatements are what Raz in the above passage calls theoretical statements.See Hart ( 1961 /94: 291 p. 86); cf. Baker ( 1977 , p. 39); Bulygin ( 1981 , II).Coleman says things about Harts anti-reductionism and the reductionismof older legal positivists that are similar to what Raz says. See Coleman(1998 , p. 116; 2001, pp. 7677). These are indications, additional to the onesthat I mention in the text hereinafter, that Coleman too is committed to anormative conception of internal legal statements.

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I must confess a little uneasiness with their talk of what lawclaims, holds itself to be, or purports to do. It seems to mereasonable to translate such talk of what law itself essentiallyclaims or holds as talk of what internal legal statementsessentially purport to say. Alternatively, we can at least inferfrom what such philosophers attribute to law itself thatinternal legal statements that are meant to accurately repre-sent the contents of laws essentially assert the existence of reasons and obligations. Once again, at least some of thesephilosophers do not agree with Hart in distinguishing internal

and external legal statements. But all I want to take awayfrom their writings at this point is that the central uses of legallanguage meant to accurately characterize what law saysnecessarily purport to assert existence of reasons for actionand even of obligations. I believe that this last claim would beacceptable to these philosophers. And it can be combined withthe distinction between internal and external legal statementsto conclude that internal legal statements are normative

statements in the sense that to make such statements is nec-essarily to assert the existence of some reasons for action, andeven obligations.

One may object to such a conception of internal legalstatements by pointing out that a person may perfectly wellmake a legal statement without any intention of asserting theexistence of reasons to act in accordance with the relevant laws.I do not deny this. But we should keep in mind that we are

concentrating on internal legal statements. At least some of thelegal statements that are uttered without the reason-givingpurport are external legal statements. In some other cases inwhich we take the existence of laws with less than seriousness,we may be uttering what Raz calls detached legal statements.These are statements of law , like internal legal statements (asHart conceives them), but unlike them in expressing only pre-tended or simulated commitments to the relevant laws (see Raz

1975 /90, pp. 172177; 1981). An example would be a libertariantax lawyer telling his client, You ought to pay your incometaxes by April 15. It is a live question whether there are suchlegal statements, distinct from both internal and external legal



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statements as Raz and some others claim. 13 If the phenomenonof detached legal statements were real, it would mean that suchstatements carry reason-giving force only in pretended or sim-ulated fashion.

The possibilities of external and detached statements in legalcontexts should not detract from the normative nature of themore central uses of legal language. Notice that external anddetached moral statements are also possible. An anthropologistmay describe the mores, as well as the laws, of a community thathe studies. And a person (say, Thrasymachus or Humes sensible

knave) may make an assertion of morality with only a pretendedor simulated commitment to its norms. But such possibilities arenot seen as casting doubt on the reason-giving force of thecentral uses of moral language. Of course, external and detachedlegal statements are much more commonly made than theirmoral counterparts. But the statistical frequency alone does notdetract from Harts core insights that laws can prevail onlywhere people treat certain norms as giving them reasons and

obligations to act in certain ways, and that such normativecommitments are displayed in the legal language through whichthey interact with each other. External and detached uses of legallanguage seem parasitic on these more central phenomena.

Clearly, a full defense of the conception of internal legalstatements as normative statements would exceed what I cancarry out in this article. Such a defense would involve a set of arguments to show that this particular conception (along with

perhaps a particular meta-normative construal of it) betterexplains the legal and related phenomena than alternative,competing conceptions of the legal discourse. I cannot give sucha defense here. Instead, for the rest of this article, I want to

13 In addition to Razs writings on the topic, see Baker ( 1977 , pp. 4142);Finnis ( 1980 , pp. 234236). I discuss detached legal statements at length inToh ( 2007 ). As I argue there, it seems best to classify detached legal state-ments as a species of internal legal statements, but to distinguish them fromcommitted internal legal statements. But Razs official position is that de-tached statements are distinct from what Hart conceived as internal legalstatements, and that the phenomenon of detached legal statements vitiatesthe distinction between internal and external legal statements. I argue in Toh(2007 ) that that is not the right lesson to take away.

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assume both the distinction between internal and external legalstatements, and the normative conception of internal legalstatements, and try to assess the social fact thesis in light of theseassumptions. Given the dominance of conceiving legal positiv-ism as committed to the social fact thesis, showing that thatthesis is incompatible with a quite reasonable conception of internal legal statements should provide a compelling reason toseek out a different conception of legal positivism. I will make aninformal case for this in the next section, before going on toprovide a more detailed case in subsequent sections.

V. INFORMAL ARGUMENT FOR THE IS -OUGHT GAP

Suppose that I come to you for advice. I am wondering whetherI should drive my friend Mary to the airport as I earlier promisedher, given that I very much would like to attend a concert thatoverlaps in timing with the trip to and from the airport. Havinglistened to my explanation of the situation, you tell me that

I certainly ought to drive Mary to the airport, and point out thatI made a promise to do so. So what? I ask. Well, you ought tokeep your promises! you thunder back. I tell you in responsethat I am very much inclined to go to the concert, and point out toyou that I would be able to maximize my own pleasures by goingto the concert instead. So what? you ask. Well, I saysomewhat sheepishly, maximization of ones pleasures is what,after all is said and done, each of us ought to be going for. Youwalk away in disgust (or something like that).

Notice that each of us initially named some fact in support of the normative position that he took. But when the other persondid not automatically take that fact as counting (decisively) infavor of the relevant normative position, each of us appealed toa norm or principle according to which the named fact is a(decisive) consideration in favor of an action.

A joint inquiry 14 into what one ought to do obviouslyneed not stop as early as did the one that I just sketched. In

14 Of course, the inquiry need not be a joint one. It could be a solitary onein which one person inquires as to what to do, or as to what the grounds arefor a particular normative position or decision.



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philosophical and other settings, we can inquire further as towhy, for example, we ought to keep promises. You may pointout to me that only when promises are kept can people suc-cessfully pursue their projects. 15 And I may then challenge thenorm that you are implicitly assumingnamely, that we oughtto facilitate peoples pursuit of their projects. In response, youmay point out that people can achieve happiness only whenthey are able to pursue their projects successfully. I may thenchallenge your implicit assumption of the norm that we oughtto work towards peoples happiness. And so on. At each stage,

facts alone do not provide sufficient grounds for the relevantnormative conclusion. And my conjecture is that facts alonenever do no matter how high up (or deep down, depending onthe metaphor one prefers) we go in seeking the grounds thatgenerate the normative force of our conclusions.

The example just used concerns moral reasoning and moralconclusions. I believe that the same lesson applies for any nor-mative reasoning aimed at discovering the grounds of normative

conclusions, including (internal) legal reasoning and the groundsof (internal) legal conclusions. A legal conclusion such as Youare obligated to pay income taxes can be challenged, and adefense of such an internal legal claim would require not justmentioning certain factse.g. what the appropriate sections of the U.S. Code books say, and what legislators have done in thepast and what judges are disposed to do in the futurebut alsoappeals to norms making such facts relevant to, and perhaps

decisive considerations for, determining what ought to be done.At some point, we will have to appeal to the federal income taxlaws the contents of which are recorded in the U.S. Code books(rather than to the fact that they are recorded in those books), andperhaps even the Sixteenth Amendment of the U.S. Constitutionauthorizing Congress to levy income taxes.

Could someone ask why we ought to abide by what theSixteenth Amendment, or the U.S. Constitution, says? At the

beginning of his article Law, Plans, and Practical Reason,Scott Shapiro says that no American lawyer would challenge the

15 In elaborating this example here, I am borrowing from G.A. Cohensdiscussion in his ( 2003 ), from which I have learned much.

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legal bindingness of the U.S. Constitution ( 2002 , p.387). But thenhe proceeds to say that we need a philosophical explanation of why the U.S. Constitution is a binding law in the United States:What makes it the case that the United States Constitution islaw in the United States? What justies the conviction of thecourts [to that effect]? Shapiro says that natural law answers tothis question say that certain moral facts make the U.S.Constitution the ultimate binding law of the United States,whereas legal positivist answers say that certain social facts, andmore specically a social convention among legal officials to treat

the U.S. Constitution as the ultimate binding law of the UnitedStates, makes that to be the case (388).

Shapiro who favors the legal positivist approach counts as anadherent of the social fact thesis. 16 But it is not immediatelyobvious to which version of this thesisthe external or internalversionhe is committed. As I said in III above, I am notarguing against the external version of the social fact thesis. Andif Shapiro is claiming that observers who are trying to determine

whether the U.S. Constitution is the prevailing fundamental lawin the United States need only to examine certain social facts tomake this determination, I am inclined to agree. But Shapirosometimes soundsas if he is interested in determining the trueandultimate grounds of an internal legal statement to the effect thatthe U.S. Constitution is the fundamental law of the UnitedStates. And if this is his query, I nd the legal positivist approachthat he delineates and favors problematic.

If the last internal legal statement is a normative statement thatpurports to proffer reasons and even obligations for action, asmany legal philosophers including Shapiro think, then itsgrounds cannot consist merely of factual ones but must alsoinclude normative ones. In reaction to Shapiros proposal that weare obligated to act as the U.S. Constitution requires because

16 My discussion of Shapiros views in this article is limited to thoseindicated in Shapiro ( 2002). A recent conversation with him leads me tobelieve that his views have changed in signicant ways since the time of thatarticle.



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there is a convention (or a convention of a particular variety) 17

among legal officials to treat the U.S. Constitution as valid andbinding law, we can ask why that fact should obligate us. AndShapiro in response would have to appeal to a norm that sayssomething to the effect that if such a convention (or a particularvariety thereof) exists, then we have reasons and even obligationsto comply with the norm that is conventionally practiced. 18 I amnot here trying to question the plausibility of any such response; Iammerely pointing out that some such response would have to beforthcoming, and such a response would in effect be naming a

needed normative ground for the original internal legal claim.Lest my concentration on Shapiros particular views give a

misleading impression, I should point out that my argumenthere is not limited to conventionalist variants of the social factthesis. Whatever kind of facts a social factualist names as thecrucial kind that supposedly generate reasons for action, we canask for a norm or norms that enable those facts to function thatway. Leslie Green for one, while adhering to the social fact

thesis, has argued against the view that the facts that groundlegal claims are facts of convention (see Green 1983, 1985,1999 ). Green concentrates to a great extent on the inability of conventions to generate obligations. While I nd his argumentsconvincing, I believe that there is a more fundamental inabilityof social facts, whether conventional or of some other kind, togenerate reasons for action in general without the aid of norms.

17

Shapiro rejects what has until recently been the favored social factualistview that conceives the relevant convention as consisting of practicesdeveloped to solve recurring coordination problems. He along with Cole-man proposes that the convention be conceived instead as consisting of shared cooperative activities along the lines that Michael Bratman hasproposed. See Shapiro ( 2002 ); Coleman ( 2001 , lecture 7); cf. Bratman(1992 ).

18 Shapiro may actually be doing that in XI of his article, but I am notsure. He there says that peoples psychological attitudes that partially makeup a shared cooperative activity generate duties and rights in virtue of theircapacity to organize the behavior of the participants ( 2002 , p. 438). We canread what Shapiro says here as an appeal to a norm that makes the existenceof certain social facts relevant to existence of some reasons and obligations.Plausibility of such a norm can of course become an issue. Bratman seems toexpress some doubts. See Bratman ( 2002 , p. 517).

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VI. SOME CLARIFICATORY COMMENTS

Some words of clarication here that should be of help inunderstanding not only the preceding arguments but also thoseof subsequent sections. First, as I said in the penultimate par-agraph of the preceding section, I am not here trying to arguefor or against any particular normative reasoning or conclu-sion. To put the point somewhat differently, I am not here orelsewhere in this article trying to uncover the true ultimategrounds of our moral or legal obligations. I am concerned with

the nature of internal legal claims, and consequently with thetypes of grounds they need, and not about their specic truegrounds. I am trying to motivate the view that normativeclaims, insofar as their defenses or justications are needed,require some normative grounds in addition to any factualgrounds. It would follow that a person who sincerely asserts anormative claim commits himself to there being, among thegrounds for his claim, some normative ground.

Second, there is an important distinction between two kindsof justication of normative claims, and a corresponding dis-tinction between two kinds of justicatory grounds, that weshould keep in mind. Let me call the two kinds of justicationgenetic justication and nongenetic justication. As theselabels suggest, it is genetic justication that is the trouserconcept, to use J.L. Austins term from the bad old days. Bothkinds of justication consist of furnishing considerations that

count in favor of normative claims. But in giving a genetic justication of a normative claim, in particular, one would beidentifying and appealing to the considerations that generate orengender the normative force of that normative claim. Not all justications are of this sort. 19

19 The term genetic justication is suggested by Paul Horwichs dis-cussion of what he calls semantogenetic accounts of basic epistemicnorms. See Horwich ( 2005 ). I take it that Horwichs term is a play on thefrequent recent philosophical talk of the sources of normativity. (Thissense of source is of course a bit different from the sense that Raz hasgiven to that term.) Instead of genetic justication, I would have preferredto use normative justication, but that term would have been question-begging in the current dialectical context.



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The distinction can perhaps be best illustrated by an examplelike the following. In response to utilitarians assertion of theprinciple of utility, one could ask for further genetic groundsthat underwrite the normative force of that norm. One plausi-ble utilitarian response to such a request would be to say thatthere is no further ground that underwrites the principle of utility; that that principle is the ultimate norm of practicalrationality. 20 Another possible response would be an appeal tosome further considerations that can be seen to underwrite thenormative force of the principle of utility. 21 But there may be a

different kind of challenge to the principle of utility, appro-priate responses to which would differ as well. Instead of demanding that utilitarians point to the ultimate grounds of thenormative force of the principle of utility, one could ask forsome other considerations in favor of the credibility oracceptability of the principle of utility, considerations that donot themselves generate the normative force of the principle of utility. Such a demand would be appropriate even when ad-

dressed to utilitarians who believe that the ultimate status of theprinciple of utility means that there cannot be further consid-erations that underwrite the normative force of that principle.Such utilitarians could in response point to our intuitions or judgments about some individual moral issues in which we havesome condence, and argue that the norm that best justiesthose intuitions or judgments is the principle of utility. Inmaking this argument, utilitarians would not be treating the

individual moral intuitions or judgments as the grounds thatgenerate the normative force of the principle of utility. In fact,in arguing that the principle of utility best justies the indi-vidual moral intuitions or judgments, they would be using thesense of justify that is different from the sense in which theindividual intuitions or judgments justify the belief in oracceptance of the principle of utility. The former is the genetic

20 This presumably would have been Benthams response. See Bentham(1789 /1970, p. 13).

21 For example, Mill appeals to certain psychological facts to defend theprinciple of utility, and R.M. Hare appeals to the meanings of moral terms.See Mill ( 1861 /1979, ch. 4); Hare ( 1981).

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sense of justication; whereas the latter is the nongeneticsense. 22

I take the social fact thesis as a thesis about the geneticgrounds of internal legal statements. Social factualists see thesocial fact thesis as a competitor to the natural law view,according to which the standards of morality that legalnorms satisfy are ultimately responsible for generating thereasons and obligations for action that those legal normspurport to proffer. And social factualists have accordinglyappealed to the kind of social factse.g. explicit decisions,

coordination conventions, and cooperative activities among

22 Nelson Goodman famously argued that we ought to appeal to ourinferential practices to justify our rules of deductive and inductive infer-ences. See Goodman ( 1979 /83, ch. 3). In my terminology, he was arguingthat our inferential practices could provide nongenetic grounds for the rulesof inference, but not genetic grounds. Thanks to Gary Ebbs for pointing outthe relevance of Goodmans views for the distinction I am making in thetext.

Let me here speculate a little on the nature of the distinction I ammaking in the text. To be more precise than what I say in the text, Ispeculate, whether a particular justication or ground is a genetic justi-cation or ground is relative to a system or order of norms. Like legal ormoral norms, epistemic norms can be thought to form a system or order.A system of epistemic norms would be a set of norms governing what tobelieve or accept in what circumstances. See Field ( 1996 , p. 362) for theuse of this idea for a somewhat different purpose. A justication of a

moral claim, for example, that is nongenetic with respect to the moralsystem may be genetic with respect to the epistemic system, and vice versa.In other words, a justication that does not appeal to a set of grounds thatgenerate the normative force of a normative claim as a moral claim mayconstitute an appeal to a set of grounds that do generate the normativeforce of the same claim as an epistemic claim. Among the norms thatconstitute an epistemic system, I imagine, would be a norm that recom-mends inference to the best justication. When that norm is combinedwith the individual moral intuitions or judgments in which we have somecondence, and the fact that the principle of utility best justies thoseindividual moral intuitions or judgments, then the epistemic system wouldrecommend inferring the principle of utility. Here, the appeal to theindividual moral intuitions or judgments would be a part of a genetic justication relative to the epistemic system, although a part of nongenetic justication relative to the moral system. Or so I speculate.



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legal ofcialsthat have certain amounts of intuitive attrac-tiveness. 23 It is difficult to see their motivation as that of providing anything other than genetic justications of inter-nal legal statements. 24 And in arguing in opposition to socialfactualists that among the grounds of any normative state-ment must be some normative grounds, I too am (at leastthus far) concentrating on genetic grounds. I am arguing thatamong the genetic grounds of any normative claim must besome normative grounds in addition to any factual ones.And by justication and grounds henceforth, I shall

mean genetic justication and grounds only, unless I clearlynote otherwise.

Third, I have in the preceding section assumed implicitly a sortof foundationalism about genetic grounds, but I have notassumed a general epistemic foundationalism that would becontroversial. By genetic foundationalism, I mean the viewaccording to which the considerations that underwrite thenormative force of some particular normative claim form a

hierarchy of considerations with some privileged consider-ations at the top. The kind of privilege I am talking abouthere is not epistemic privilege (such as that of self-evidence,incorrigibility, etc.), but rather that of being the ultimate geneticgrounds. Notice that a belief in such a genetic foundationalismmay be arrived at by deploying a coherentist epistemology(see Sayre-McCord 1996, p. 151). The assumption of geneticfoundationalism is ultimately disposable, and I employ it only

because a hierarchical picture seems a very natural view to take of how legal norms are organized ina legal system. Ifwewere to takea more coherentist view of genetic grounds, then the point Iwant to make would just be that a joint inquiry about the geneticgrounds of any normative claim would have to involve appeals to

23 This is clearly displayed in Coleman and Leiter ( 1996 , p. 248), as well asin Dworkins characterization of legal positivism in Dworkin ( 1986 , ch. 4).

24 Some social factualists may be seen to be talking about nongenetic justication when they talk about social facts as serving an identicationfunctioni.e. enabling us to determine the contents of laws, and in par-ticular of ultimate norms of a legal system, or what Hart calls the rule of recognition. See e.g. Raz ( 1979c , pp. 6869). I will be addressing this issuein footnote 46.

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some normative considerations as well as to some factual onesthat together constitute, along with the normative claim inquestion, a network of considerations that stand in relations of mutual support.

I want to retain the genetic foundationalism that has beenimplicit in my discussion, and this brings me to my fourthclaricatory comment. Although I believe that any normativestatement must have among its grounds some normativegrounds as well as factual ones, if we stick with the founda-tionalist picture, then ultimately there must be some normative

statements that do not require any further grounds themselves.Accordingly, the point I am arguing for is that a normativestatement, insofar as it has grounds , must have some normativegrounds as well as factual ones. It is not that any normativestatement must have some normative grounds. That would giverise to an unfortunate regress.

VII. MAIN ARGUMENT FOR THE IS-OUGHT GAP

What I am in effect relying on in thinking that a normativestatement (insofar as it has or requires further grounds) musthave normative grounds in addition to any factual ones, is theexistence of an inferential gap between normative statements onthe one hand and factual statements on the other. This is theso-called is-ought gap, supposedly argued for by Hume, 25

according to which no ought -statement can be derived from aconsistent set of is-statements alone. 26

Notice what the existence of such an inferential gap wouldmean for the tenability of the social fact thesis. If such a gapwere to exist, then any justication or defense of a normativestatemente.g. an internal legal statementwould have toappeal to at least one normative premise. Appeals only to

25 See Hume ( 1739 40, pp. 469470). I say supposedly because whatHume actually had in mind is a much debated issue among philosophers andhistorians of ideas. See e.g. Sapadin ( 1977 ); Sturgeon ( 2001 ). Prior ( 1949 )traces the history of the philosophical discussion of the gap to times prior toHume.

26 Consistency of premises is required because an inconsistent set of premises would entail anything.



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factual premises would not be sufcient for the justication of anormative statement. Put another way, a person who makes anormative statement would be implicitly committed to therebeing, among any grounds of that statement, some normativegrounds in addition to any factual grounds. In sum, the exis-tence of the is-ought gap would make the social fact thesisuntenable.

The existence of the is-ought gap is a much contestedmatter. But clearly there is a greater willingness among phi-losophers to think that such a gap exists when deductive

inferences are involved than when nondeductive inferences areinvolved. By deductive inferences, I mean to include notonly strictly deductive inferences the validity of which dependonly on logical forms, but also inferences the validity of whichdepend on conceptual contents of premises and conclusions. 27

By nondeductive inferences, I shall mean warranted orreasonable, though invalid and defeasible, inferences. Inarguing for the is-ought gap in this and the following sections,

I will concentrate on deductive inferences. I actually believethat the gap exists for nondeductive inferences as well, but Iam not sure about some aspects of arguing for such a con-clusion and for this reason shall restrict my discussion fromnow on to deductive inferences. 28 Since the social fact thesis isa universal claim that all correct legal reasoning ultimately

27 Wilfrid Sellars and his followers call the latter material inferences.

See Brandom ( 1994 , pp. 9798). Thanks to Gary Ebbs for alerting me to theinaccuracy of my labels deductive and nondeductive, and for the ref-erence. I have nevertheless retained the inaccurate labels for want of betterones (a priori and a posteriori are even less serviceable), and in rec-ognition of other philosophers uses of the same.

28 As Nicholas Sturgeon has suggested, the fact that nondeductiveinferences are not as well understood as deductive inferences partly explainsthe fact that it is more difficult to diagnose what is wrong with contraveningthe is-ought gap for nondeductive inferences. See Sturgeon ( 2002 , p. 192n.20). Sturgeon himself believes that the is-ought gap exists for nondeductiveas well as for deductive inferences, and explains the existence of the gap interms of the theory-dependance of evidence-assessments in general, and theresulting mutual autonomies of various disciplines (201203). But what thisreasoning supports is not so much the is-ought gap as numerous is-is gaps, asI think Sturgeon will happily admit. Cf. Brink ( 1989 , p. 167).

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appeals to only social facts, 29 a convincing argument toestablish that the is-ought gap exists for any deductive legalinferences should be enough to show that the social fact thesisis untenable. For surely some sound internal legal reasoning isdeductive.

The existence of the is-ought gap is made plausible by thefact that it would provide a ready explanation of our inferentialpractices. Whatever some factual premise F says, in order toderive deductively from it some normative conclusion N, wewould have to bring in an additional premise that says some-

thing like:(1) If F, then N.

The pressures of joint deliberation would reveal the need for anadditional premise like (1) in any normative disagreement. In anormative disagreement as to whether N is the case, two dis-cussants would proceed to exclude from their attention all areasof agreement, and try to focus on the areas of contention. They

may disagree about whether F is the case, but even when theyagree on F, they may disagree as to whether N follows. In sucha case, what gets isolated for dispute is something like (1). Onediscussant would be claiming, while the other denies, that (1) isthe case and that it licenses the transition from F to N. Forexample, two discussants may agree completely on what Jonesdid, but disagree on whether Jones ought to be punished. Insuch a case, what gets isolated for dispute is a statement like (1).

The need to bring in such an additional premise is explained bythe existence of an inferential gap between a description of whatJones did, and the normative conclusion that Jones ought to bepunished.

If (1) can be thought a statement of a rule of deductiveinference, rather than a separate premise, then the fact that(1) can become a focal point of disagreement in any normativediscussion would not show that there exists an inferential

gap between factual statements and normative statements. A

29 As I pointed out in III above, even inclusive legal positivists arecommitted to this universal claim.



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discussants demand that his interlocutor show that (1) is thecase would then be as misguided as the tortoises demand toAchilles in Lewis Carrolls famous philosophical tale (seeCarroll 1895). The tortoises demand was that a rule of deductive inference be brought in as an additional premise toguarantee the logical validity of a deductive inference. But whatresults from complying with that demand is an undesirableinnite regress, and Carrolls point was that it is a mistake totreat rules of deductive inference as premises. But clearly, therelevant transition from F to N would not be something that is

licensed by rules of deductive inference alone.It may be more plausibly thought that (1) is an analytic

claim, and that the relevant transition from F to N is there-fore licensed by the conceptual connection between the com-ponent terms of F and of N, respectively. If that were thecase, then (1) would not be necessary as an additional pre-mise, as its meaning would already be contained in the initialpremise F. But in characterizing normative statements as

those that purport to assert existence of reasons for action, Ihave in a way stacked the deck against conceiving (1) as amere analytic statement, and in favor of the existence of theis-ought gap for deductive inferences. For there seems to be aclear conceptual difference between the meaning of a state-ment that some facts, whatever they are, obtain and themeaning of a statement that there are reasons to act in par-ticular ways. This means that any discussant involved in a

normative disagreement as to whether N is the case will haveto come to the conclusion that (1) cannot be seen as alreadycontained in F, and that (1) must be shown to be the caseindependently in order to show that N follows from F. It maybe complained here that not all normative statements purportto proffer reasons for action. But as I indicated in IV, we areconcentrating on what follows from the nature of the primaryor central sort of normative statements, which are, in the

terminology borrowed from Hart and Raz, committed inter-nal normative statements.To be sure, there have been some inuential arguments to

show that some factual statements do actually entail normative

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statements, and even statements of obligation (see e.g. Black1964 ; Searle 1964).30 In effect, what is argued is that a statementlike the following is an analytic statement:

(2) If Jones, under certain circumstances C [speciable in purelyfactual terms], said I promise to pay you Smith ve dollars,then Jones is under an obligation to pay Smith ve dollars.

and that such a statement licenses a transition from a purelyfactual statement to a normative statement. In order for thisargument to be relevant to the issue at stake, the consequent of

(2) must be a genuine normative statement, and not a meredescription of a communitys normative views or commitments;it must be what Hart calls an internal statement rather than anexternal one (see Mackie 1977, ch. 3). Now, it may indeedappear that a discussant who disputes (2) does not reallyunderstand what promise means; and that the transitionbetween the purely factual statement, contained in the ante-cedent of (2), and the normative statement of the consequent of

(2) is licensed by the meaning of promise alone. But thisappearance is misleading. We are disposed to treat utteranceslike I promise to as a move in the institutional settingprovided by the institution of promise-making, and to thinkthat a person who makes that move undertakes an obligation todo what he says he will do. But in thinking thus we are pre-supposing or implicitly committing ourselves to the variousconstitutive norms that make up the institution of promise-

making. At least some of those constitutive norms are sub-stantive norms of action, and not mere semantic norms. (2) ismore plausibly thought a statement of one such substantiveconstitutive norm, rather than as an analytic statement.

30 In addition, some philosophers and deontic logicians have shown thatthere are some trivial exceptions to the deductive gap thesis. See e.g. Prior(1960 ); Kurtzmann ( 1970 ). For example, we can derive from Snow iswhite the normative conclusion Either snow is white or murder is wrong.As Jackson ( 1974) has shown, however, such examples can be excluded in anon-ad hoc way by a slight modication to the deductive gap thesis. Sincethe trivial exceptions and the required modication are not relevant to myargument, I will ignore them in my discussion.



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any conceptual relationship between the statement of the factand the statement of the reasons. (It is not the case, forexample, that pain means in part to be alleviated.) In-stead, the transition is accomplished by appealing to a sub-stantive normative premise to the effect that we ought toalleviate pain. It is because we nd this last norm convincingthat we consider the fact that a person is in pain as callingout for our attempts to alleviate that persons pain.

VIII. OBJECTION BASED ON UNOBVIOUS OR COVERT

SYNONYMY

It may be complained that my argument in the preceding sec-tion ignores the possibility of unobvious or covert synonymies,and it may be wondered how I can be condent that nomeaning of F can entail some normative conclusion N. 32 Inresponse, I concede that nothing I have said guarantees thatthere could not be some purely factual meaning of F that entailssome conclusion with reason-giving purport. But attempts tocome up with a good example have repeatedly failed, and thehypothesis that the is-ought gap exists for deductive inferencesprovides a compelling explanation of those repeated failures.

We can strengthen the plausibility of the is-ought gap for ourimmediate purposes by considering the kind of factual premisesthat social factualists usually have in mind. Generally, theyseem to have in mind statements describing some commitmentsto act in particular ways, or some practices that generate

32 In thinking that (1) has to be a substantive normative statement ratherthan an analytic one, and relying on what I consider a clear conceptualdifference between factual and normative statements, I am ultimately relyingon thought experiments along the lines of G.E. Moores open questionargument. See Moore ( 1903 /93, ch. 1). And that argument is vulnerable tosome well-known objections. In this section, I will be responding to a ver-sion of one such objection according to which Moore ignored the possibilityof unobvious or covert synonymies. See Lewis ( 1989 ); Jackson ( 2003 ).Another common objection says that even if Moore had hit upon a reliabletest for synonymy, he was committed to a defective test of property-identityaccording to which two terms can designate the same property only if theyare synonymous. See Brink ( 1989 , pp. 156167); Sturgeon ( 2002 , p. 196). Iwill respond to a version of this last objection in the next section.



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mutual expectations of acting in particular ways. If I were tomake a resolution to go swimming every morning, then I wouldhave a reason to go swimming tomorrow morning. If I were tomake an agreement with you to pay you a certain amount of money in exchange for your delivery of some goods, then uponyour delivery of those goods I would be obligated to pay you.And so on. Coleman nicely sums up this strategy when he says:

The naturalistic account that [legal] positivism provides by explaining law interms of social facts is just supposed to show how, by appealing to socialfacts, we can see that law is in the same boat with a lot of other practices

that we normally suppose are capable of creating reasons and duties. Pos-itivism seeks to show that the way in which law can give rise to duties is nomore and no less mysterious than the way in which promises, pacts, re-ciprocal expectations, and so on can create duties. ( 2001 , p. 159) 33

Social factualists like Coleman do not specify whether theinferences that they have in mind are deductive or nondeductiveinferences. I will proceed on what seems to me a reasonableassumption that they mean to include some deductive infer-

ences among the relevant set of inferences. And taken that way,social factualists arguments are in essentials no different fromJohn Searles classic argument (1964) intended to show thatfrom the fact that someone promised to do something we candeductively infer that he has an obligation to do that.

All such arguments implicitly appeal to something like:

(3) If a person commits (or resolves, promises, agrees, etc.) to , thenhe has a reason (or even an obligation) to .

where the antecedent is a purely factual statement and theconsequent is a genuine normative statement. And this is just aversion of (1), and little different from (2). The question is whatthe status of (3) is. Is it an analytic statement about whatcommitment, resolution, promise, agreement, orsome such term means? Or is it a substantive normative state-ment? If the former were the case, then we would be able to say

that (3) is not a separate premise since it would already be33 In this passage, Coleman is specically addressing the suspicion that his

social fact thesis is an attempt to infer an ought -statement from is-statementsalone.

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contained in the factual premise to the effect that a personmade a commitment (or resolution, promise, agreement, etc.),and that would enable us to afrm the social fact thesis. But astrong case for characterizing (3) as a separate normative pre-mise can be made.

In denying that (3) is an analytic statement, we are of coursenot denying that many versions of (3) may be correct. Thefollowing version, for example, seems quite compelling:

(4) If a person promises to , then he has a reason to .

We may of course come across a person who disagrees with usabout (4). Now, would we react to such a person as if he lackeda proper conceptual understanding of what a promise is? Orwould we react by invoking further normative grounds insupport of (4)? My informal argument of V indicates that wewould react to such an interlocutor by invoking further nor-mative grounds. And if that is right, as I think it is, then thatindicates that (4) is a substantive normative statement. Social

factualists may respond that the further grounds that we wouldappeal to can also be thought analytic claims that a properunderstanding of promise would contain. But consider thekinds of grounds that I invoked in V; one consideration Inamed there was that we ought to further peoples happiness.As we invoke more and more further grounds to justify a claimlike (4), attempts to portray such grounds as analytic claims willlook less and less plausible. Social factualists may also argue (in

the classic deontologist fashion) that the obligation to keeppromises is a normative bedrock, that it cannot and need not besupported by additional normative grounds. This may be right,but we can certainly imagine confronting an interlocutor whoappeals to additional grounds like that of furthering othershappiness. Such a position may be substantively wrong, but itwould not be an instance of conceptual confusion. And thatmeans that (4) cannot be an analytic statement.

IX. OBJECTION BASED ON METAPHYSICAL ENTAILMENT

Another objection that may be brought against my argument of VII is that although (1) is unlikely to be an analytic statement,



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it does not thereby have to be deemed a normative statementsince it could be a metaphysical statement asserting a meta-physical relation of identity, or of constitution, between whatsome key component terms of F and N refer to, respectively.

In asserting that there is an inferential gap between factualstatements on the one hand and normative statements on theother, and that no meaning of F can imply some normativeconclusion N, I am not excluding the possibility that there aresome meanings of F and N so that:

(5) Necessarily, if F then N.

Strenuous normative and empirical inquiries on our parts mayreveal that necessarily whenever some fact obtains, we ought toact in particular ways. For example, it could be plausiblyclaimed that whenever slavery exists, we have reasons to try toabolish it. Some facts may necessarily call out for some actions.And in such cases, to describe such facts would necessarily be todescribe what generates reasons for action. In other words, I

can concede that the arguments of the sort that I am relying ondo not show that there is no metaphysical relationship of identity or constitution between what some key componentterms of F and N refer to, respectively (see Gibbard 2003, pp.2933). Such a relationship may hold, in which case F wouldmetaphysically entail N.

The important point, however, is that the supposed estab-lishment of (5) would have had to appeal to some substantive

norms or principles, and for this reason the metaphysicalrelationship between F and N that we are entertaining wouldnot contravene the is-ought gap. Some may be inclined to thinkthat no such appeals to normative considerations are needed toestablish (5). But that may be the case only because they arethinking of N as a factual statement to the effect that a normprevails among a community of people (or what Hart calls anexternal statement), rather than a genuine normative statement

(or an internal statement).The upshot of the discussion in the last three sections is thatthe hypothesis that bridge premises like (3) are substantivenormative statements better explains our inferential practices

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than alternative hypotheses. That enhances the plausibilityof the is-ought gap for deductive inferences. In particular, Ibelieve, we can conclude that there is a presumption of con-siderable strength against thinking that any mere descriptionsof some mutual commitments of a group of people can entail,without the benet of some normative premises, a normativeconclusion about their reasons for action.

This is a signicant result. Oliver Wendell Holmes famouslysaid that the life of law has not been that of logic ( 1881 , p. 1).Sure enough. But no reasonable lawyer can deny that some

sound legal inferences are deductive. Notice that the social factthesis is a very strong thesis. In effect, it says that all legalreasoning ultimately appeals only to some social facts. All Ineed in order to cast doubt on that universal claim is to showthat the existence of the is-ought gap is quite plausible for somesound legal inferences that reach their ultimate groundsas amatter of fact, just one single instance thereof. And insofar asthere is a presumption for the belief that the is-ought gap exists

at least for deductive inferences, there is a strong reason forthinking that the social fact thesis is false.

X. OBJECTION BASED ON THE NATURE OF RULES OFRECOGNITION

Social factualists may point out that the social fact thesis saysthat sound legal reasoning ends with appeals to some socialfacts. In other words, they may take the view that although myarguments thus far may be correct about intermediate groundsof internal legal conclusions, it is incorrect about their ultimategrounds.

Such a view is sometimes articulated in discussions of what Hart calls the rule of recognition of a legal sys-temthe highest-order norm of a legal system that speciesthe criteria of legal validity for other norms of that legalsystem. Although there is some consensus among legal phi-losophers that internal legal statements in general are nor-mative statements, my impression is that there is no suchconsensus about internal statements asserting the content of a rule of recognition (or any part thereof)or what I



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propose to call hereinafter internal recognitional statements .At least some legal positivists seem to think of all recogni-tional statements as factual statements that do not themselvesrequire normative grounds, and at the same time groundsubordinate internal legal statements. 34 Alternatively, theyseem to think that internal recognitional statements arenormative statements that have only certain social facts astheir grounds. They seem to believe that the reason-giving oreven obligation-imposing force of any statement asserting thecontent of a rule of recognition (or a part thereof) consists of

the fact that there is a customary or conventional practiceamong a group of people of treating that norm as the ulti-mate norm of their legal system. Such legal philosophersoften refer to a rule of recognition as a customary rule ora conventional rule (see e.g. Raz 1971, p. 94; Coleman2001 , p. 78).

Such a conception of the rule of recognition, and suchlocutions, are unobjectionable if they are meant as external

claims about the rule of recognition. Often, however, legalphilosophers seem to treat the fact that a particular rule of recognition is practiced (or more specically, the conven-tionality of the rule of recognition) as providing a reason, oreven an obligation, for participants in the relevant communityto adhere to that rule of recognition. The following passagefrom an article by Postema is a clear instance of such a position:

According to Hart, the validity (and so the normative signicance) of or-dinary rules of law can be traced ultimately to a set of criteria of validitywhich exist not as valid rules (identied by some further rule of validity) butas social rules embedded in the law-identifying and law-interpreting activi-ties of ofcials, legal practitioners, and perhaps others. This potentiallycomplex, ordered set of criteria of validity is the rule of recognition. Thecrucial insight of this doctrine is that law rests, at its foundations, on a

34 In other words, they may think that recognitional statements can beonly external legal statements. Such a view could be motivated in part byHarts claim that [t]he assertion that [a rule of recognition] exists can onlybe an external statement of fact (1961/94, p. 110). I will discuss this quotein the next section. I have argued in some detail elsewhere as to why Hartshould not be read as asserting in this sentence that recognitional statementscan only be external statements. See Toh ( 2005 , pp. 9091).

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special and complex custom or convention. It is my contention that thisnotion of convention, when properly understood successfully bridges the

gap between social fact and genuine obligation because a convention isboth a social fact and a framework of reasons for action. ( 1982 , p. 166)

Similarly, Coleman, who defends a version of the social factthesis that he calls the conventionality thesis, says: The keyidea in the conventionalist picture is that [the rule of recogni-tion] provides reasons because it is adopted by individuals inorder that it guide their behaviour (1998 , p. 118). He fur-ther asserts that the fact that people accept a rule of recognition

turn[s] behavior into a rule; it turns a social fact into anormative one ( 2001 , p. 89). In other words, these and otherlike-minded philosophers seem to treat the social fact thesisabout the rule of recognition as an internal thesis.

But this special treatment of the ultimate grounds of internallegal statements is quite unwarranted. If my arguments in thepreceding three sections are correct, then statements describingthe social facts of the sort that Postema, Coleman, and otherlike-minded legal philosophers discuss cannot by themselvesentail a normative statement asserting the existence of reasonsand obligation for action no matter what level of grounds weare talking about. What I suspect all such legal philosophers areappealing to in their arguments is some additional premise like(3). But once again, for the reasons outlined above, such pre-mises are substantive normative statements, and not merelyanalytic statements that allow a deductive derivation of ought -

statements from is-statements alone.My suspicion is that social factualists do implicitly appeal to

substantive normative considerations. Postema seems to admitas much in the following passage:

I must hasten to add that the normative force of the conventional rule of recognition rests neither on the moral merits nor the inherent reasonablenessof the rule itself, nor on the judges (or anyone elses) belief in such. Itdepends simply on the fact that the rule succeeds in the task of coordinating

law-identifying and law-applying activities of ofcials and lay persons

.But as long as the existing rule succeeds, and alternative rules cannotpromise success, and as long as achieving coordination is at least minimallydesirable, the existing rule will continue to generate (prima facie) obligationson the part of officials to conform to it. (1982, p. 199)



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Either way, a reading of Hart that does not commit him to thesocial fact thesis can be seen to point us towards a new con-ception of legal positivism.

Social factualists see their positions as following or furtherdeveloping Harts (see Postema 1982, pp. 169171; cf. Green1999 , pp. 3739). And there certainly are important passages inHarts The Concept of Law that seem to lend support to thesocial fact thesis. One such passage is from chapter 6 of TheConcept of Law :

[W]hereas a subordinate rule of a [legal] system may be valid and in thatsense exist even if it is generally disregarded, the rule of recognition existsonly as a complex, but normally concordant, practice of the courts, ofcials,and private persons in identifying the law by reference to certain criteria. Itsexistence is a matter of fact. (1961/94, p. 110)

In another passage from a long endnote to chapter 6 elabo-rating on the nature of the rule of recognition, and distin-guishing it from Kelsens basic norm, Hart says:

The question whether a rule of recognition exists and what its content is, i.e.what the criteria of validity in any given legal system are, is regardedthroughout this book as an empirical, though complex, question of fact.(p. 292)

This passage, like the one quoted rst, can be read as anexternal claim about the nature of the rule of recognition. Butimmediately afterwards, Hart says that a lawyer who makes aninternal legal statement presupposes the fact that some normexists as the accepted rule of recognition of his legal system, andgoes on to remark:If challenged, what is thus presupposed but left unstated could be estab-lished by appeal to the facts, i.e. to the actual practice of the courts andofcial

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