Boyong Zhou

This paper defends H.L.A Hart’s so-called Inclusive Legal Positivism against Dworkin’s objections. This sort of positivism insists that moral principles can be incorporated into standards of legal validity without compromising the social nature of the rule of recognition. I developed this line of thought. Particularly, I make two claims. (A). Incorporating moral principles into legal validity criteria would not be incompatible with the Social Fact thesis, according to which law is primarily a social fact. (B). Such incorporation in (A) aligns with the social nature of the rule of recognition as a convention. Moreover, I will respond to an objection that inclusive positivists misunderstand the conceptual nature of convention and, therefore, fail to defend their position. By addressing this objection, I will propose a limited interpretation of the extent to which positivists can incorporate moral principles into the law. I claim that the incorporation of moral norms should be read as a necessary but not sufficient condition for legal validity. Accordingly, we can draw a distinction between what the rule of recognition is and what it should confirm. When judges disagree with each other about the standard of legal validity, we could interpret their disagreement as not about the social nature of the rule of recognition, but about some external necessary constraint it must conform to.