what is legal basis in thesis

Law Library

Writing Academic Papers for Law School

Substantial Writing Requirement
How to Find and Narrow Your Topic
Researching for Your Paper
Other Support for Substantial Writing

The thesis of your substantial writing paper must meet several requirements:

It must be original
It must take a position, advance an argument, or propose a solution
It must be concrete, identifiable, and manageable
It must be novel, useful, nonobvious, and sound

Your approach to the topic may be descriptive, prescriptive, or both.

You should also do a preemption check on your thesis, which means you make sure no one else has argued your exact same thesis/argument. You research the key terms of your thesis to make sure that no scholarly work comes up in your list of results with the same thesis.

Types of Theses

Most law review theses fit into three main categories: proposing a solution to a legal problem, bringing an interdisciplinary idea into the law, and comparing two or more legal ideas.

Common Arguments

A law review thesis will usually engage in one or more common types of arguments. These may include:

an argument from precedent,
an interpretive argument,
a normative argument, or
an institutional argument.

For more information about these types of arguments, see Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students 37-38 (5th ed. 2017).

Solution Theses

There are a few helpful ways to think about generating a solution as your thesis.

This type of thesis might transfer a solution from one area to a new area.
It might re-categorize claims and facts that have been made elsewhere.
It might challenge assumptions about an area of law.
It might extend or modify an existing theory or doctrine.
It might borrow distinct legal principles to respond to new events.
It might use analogy and metaphor.

For more information, see Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students 55-56 (5th ed. 2017).

<< Previous: How to Find and Narrow Your Topic
Next: Researching for Your Paper >>
Last Updated: Jan 19, 2022 3:40 PM
URL: https://guides.law.byu.edu/writing_academic_papers_for_law_school

System Links

Connect with us.

#BYUlawlibrary

BRIGHAM YOUNG UNIVERSITY

Legal Dissertation: Research and Writing Guide

About this guide, video on choosing a topic, tools on westlaw, lexis and bloomberg, circuit splits, research methodologies, additional methodology resources, conducting a literature review, beginning research, writing style guides, citation guides, ask a librarian.

Ask a librarian:

Reference Hours:

Monday - Friday: 9am-5pm

(812) 855-2938

Q&A Form

About This Page

Choosing a topic can be one of the most challenging aspects of writing an extensive paper. This page has resources to help you find topics and inspiration, before you get started on the in-depth research process.

Related Guides

Citation and Writing Resources

Legal Research Tutorials

Secondary Sources for Legal Research

Methods of Finding Cases

Methods of Finding Statutes

Current Awareness and Alerting Resources

Compiling State Legislative Histories

Locating International and Foreign Law Journals

This guide contains resources to help students researching and writing a legal dissertation or other upper-level writing project. Some of the resources in this guide are directed at researching and writing in general, not specifically on legal topics, but the strategies and tips can still be applied.

The Law Library maintains a number of other guides on related skills and topics that may be of interest:

The Wells Library also maintains guides. A few that may be helpful for managing research can be found here:

Choosing a Topic

This video discusses tips and strategies for choosing a dissertation topic.

Note: this video is not specific to legal dissertation topics, but it may still be of interest as an overview generally.

The Bloomberg/BNA publication United States Law Week can be a helpful resource for tracking down the major legal stories of the day. Log into Bloomberg Law, in the big search box, start typing United States Law Week and the title will appear in the drop down menu beneath the box. This publication provides coverage of top legal news stories, and in-depth "insight" features.

If you have a general idea of the area of law you wish to write about, check out the Practice Centers on Bloomberg. From the homepage, click the Browse link in the top left-hand corner. Then select Practice Centers and look for your area of law. Practice Centers are helpful because they gather cases, statutes, administrative proceedings, news, and more on the selected legal area.

Bloomberg has other news sources available as well. From the homepage, click the Browse link in the top left-hand corner. Then select News and Analysis, then select News or Analysis, and browse the available topics.

If you know what area of law you'd like to write about, you may find the Browse Topics feature in Lexis Advance helpful for narrowing down your topic.

Log into Lexis Advance, click the Browse Topics tab, and select a topic. If you don't see your topic listed, try using the provided search bar to see whether your topic is categorized as a sub-topic within this list.

Once you click on a topic, a box pops up with several options. If you click on Get Topic Document, you'll see results listed in a number of categories, including Cases, Legislation, and more. The News and Legal News categories at the right end of the list may help you identify current developments of interest for your note. Don't forget about the filtering options on the left that will allow you to search within your results, narrow your jurisdiction, and more.

Similar to Lexis Advance, Westlaw Edge has a Topics tab that may be helpful if you know what area of law you'd like to write about.

Log onto Westlaw Edge, and click on the Topics tab. This time, you won't be able to search within this list, so if you're area is not listed, you should either run a regular search from the main search bar at the top or try out some of the topics listed under this tab - once you click on a topic, you can search within its contents.

What is great about the Topics in Westlaw Edge is the Practitioner Insights page you access by clicking on a topic. This is an information portal that allows you quick access to cases, legislation, top news, and more on your selected topic.

In United States federal courts, a circuit split occurs whenever two or more circuit courts of appeals issue conflicting rulings on the same legal question. Circuit splits are ripe for legal analysis and commentary because they present a situation in which federal law is being applied in different ways in different parts of the country, even if the underlying litigants themselves are otherwise similarly situated. The Supreme Court also frequently accepts cases on appeal that involve these types of conflicted rulings from various sister circuits.

To find a circuit split on a topic of interest to you, try searching on Lexis and Westlaw using this method:

in the search box, enter the following: (circuit or court w/s split) AND [insert terms or phrases to narrow the search]

You can also browse for circuit splits on Bloomberg. On the Bloomberg homepage, in the "Law School Success" box, Circuit Splits Charts appear listed under Secondary Sources.

Other sources for circuit splits are American Law Reports (ALR) and American Jurisprudence (AmJur). These publications provide summaries of the law, point out circuit splits, and provide references for further research.

"Blawgs" or law-related blogs are often written by scholars or practitioners in the legal field. Ordinarily covering current events and developments in law, these posts can provide inspiration for note topics. To help you find blawgs on a specific topic, consider perusing the ABA's Blawg Directory or Justia's Blawg Search .

Research Methodology

Types of research methodologies.

There are different types of research methodologies. Methodology refers to the strategy employed in conducting research. The following methodologies are some of the most commonly used in legal and social science research.

Doctrinal legal research methodology, also called "black letter" methodology, focuses on the letter of the law rather than the law in action. Using this method, a researcher composes a descriptive and detailed analysis of legal rules found in primary sources (cases, statutes, or regulations). The purpose of this method is to gather, organize, and describe the law; provide commentary on the sources used; then, identify and describe the underlying theme or system and how each source of law is connected.

Doctrinal methodology is good for areas of law that are largely black letter law, such as contract or property law. Under this approach, the researcher conducts a critical, qualitative analysis of legal materials to support a hypothesis. The researcher must identify specific legal rules, then discuss the legal meaning of the rule, its underlying principles, and decision-making under the rule (whether cases interpreting the rule fit together in a coherent system or not). The researcher must also identify ambiguities and criticisms of the law, and offer solutions. Sources of data in doctrinal research include the rule itself, cases generated under the rule, legislative history where applicable, and commentaries and literature on the rule.

This approach is beneficial by providing a solid structure for crafting a thesis, organizing the paper, and enabling a thorough definition and explanation of the rule. The drawbacks of this approach are that it may be too formalistic, and may lead to oversimplifying the legal doctrine.

Comparative

Comparative legal research methodology involves critical analysis of different bodies of law to examine how the outcome of a legal issue could be different under each set of laws. Comparisons could be made between different jurisdictions, such as comparing analysis of a legal issue under American law and the laws of another country, or researchers may conduct historical comparisons.

When using a comparative approach be sure to define the reasons for choosing this approach, and identify the benefits of comparing laws from different jurisdictions or time periods, such as finding common ground or determining best practices and solutions. The comparative method can be used by a researcher to better understand their home jurisdiction by analyzing how other jurisdictions handle the same issue. This method can also be used as a critical analytical tool to distinguish particular features of a law. The drawback of this method is that it can be difficult to find material from other jurisdictions. Also, researchers should be sure that the comparisons are relevant to the thesis and not just used for description.

This type of research uses data analysis to study legal systems. A detailed guide on empirical methods can be found here . The process of empirical research involves four steps: design the project, collect and code the data, analyze the data, determine best method of presenting the results. The first step, designing the project, is when researchers define their hypothesis and concepts in concrete terms that can be observed. Next, researchers must collect and code the data by determining the possible sources of information and available collection methods, and then putting the data into a format that can be analyzed. When researchers analyze the data, they are comparing the data to their hypothesis. If the overlap between the two is significant, then their hypothesis is confirmed, but if there is little to no overlap, then their hypothesis is incorrect. Analysis involves summarizing the data and drawing inferences. There are two types of statistical inference in empirical research, descriptive and causal. Descriptive inference is close to summary, but the researcher uses the known data from the sample to draw conclusions about the whole population. Causal inference is the difference between two descriptive inferences.

Two main types of empirical legal research are qualitative and quantitative.

Quantitative, or numerical, empirical legal research involves taking information about cases and courts, translating that information into numbers, and then analyzing those numbers with statistical tools.

Qualitative, or non-numerical, empirical legal research involves extracting information from the text of court documents, then interpreting and organizing the text into categories, and using that information to identify patterns.

Drafting The Methodology Section

This is the part of your paper that describes the research methodology, or methodologies if you used more than one. This section will contain a detailed description of how the research was conducted and why it was conducted in that way. First, draft an outline of what you must include in this section and gather the information needed.

Generally, a methodology section will contain the following:

Statement of research objectives
Reasons for the research methodology used
Description and rationale of the data collection tools, sampling techniques, and data sources used, including a description of how the data collection tools were administered
Discussion of the limitations
Discussion of the data analysis tools used

Be sure that you have clearly defined the reasoning behind the chosen methodology and sources.

Legal Reasoning, Research, and Writing for International Graduate Students Nadia E. Nedzel Aspen (2004) A guide to American legal research and the federal system, written for international students. Includes information on the research process, and tips for writing. Located in the Law Library, 3rd Floor: KF 240 .N43 2004.
Methodologies of Legal Research: Which Kind of Method for What Kind of Discipline? Mark van Hoecke Oxford (2013) This book examines different methods of legal research including doctrinal, comparative, and interdisciplinary. Located at Lilly Law Library, Indianapolis, 2nd Floor: K 235 .M476 2013. IU students may request item via IUCAT.
An Introduction to Empirical Legal Research Lee Epstein and Andrew D. Martin Oxford University Press (2014) This book includes information on designing research, collecting and coding data, analyzing data, and drafting the final paper. Located at Lilly Law Library, Indianapolis, 2nd Floor: K 85 .E678 2014. IU students may request item via IUCAT.
Emplirical Legal Studies Blog The ELS blog was created by several law professors, and focuses on using empirical methods in legal research, theory, and scholarship. Search or browse the blog to find entries on methodology, data sources, software, and other tips and techniques.

Literature Review

The literature review provides an examination of existing pieces of research, and serves as a foundation for further research. It allows the researcher to critically evaluate existing scholarship and research practices, and puts the new thesis in context. When conducting a literature review, one should consider the following: who are the leading scholars in the subject area; what has been published on the subject; what factors or subtopics have these scholars identified as important for further examination; what research methods have others used; what were the pros and cons of using those methods; what other theories have been explored.

The literature review should include a description of coverage. The researcher should describe what material was selected and why, and how those selections are relevant to the thesis. Discuss what has been written on the topic and where the thesis fits in the context of existing scholarship. The researcher should evaluate the sources and methodologies used by other researchers, and describe how the thesis different.

The following video gives an overview of conducting a literature review.

Note: this video is not specific to legal literature, however it may be helpful as a general overview.

Not sure where to start? Here are a few suggestions for digging into sources once you have selected a topic.

Research Guides

Research guides are discovery tools, or gateways of information. They pull together lists of sources on a topic. Some guides even offer brief overviews and additional research steps specifically for that topic. Many law libraries offer guides on a variety of subjects. You can locate guides by visiting library websites, such as this Library's site , the Law Library of Congress , or other schools like Georgetown . Some organizations also compile research guides, such as the American Society of International Law . Utilizing a research guide on your topic to generate an introductory source list can save you valuable time.

Secondary Sources

It is often a good idea to begin research with secondary sources. These resources summarize, explain, and analyze the law. They also provide references to primary sources and other secondary sources. This saves you time and effort, and can help you quickly identify major themes under your topic and help you place your thesis in context.

Encyclopedias provide broad coverage of all areas of the law, but do not go in-depth on narrow topics, or discuss differences by jurisdiction, or include all of the pertinent cases. American Jurisprudence ( AmJur ) and Corpus Juris Secundum ( CJS ) have nationwide coverage, while the Indiana Law Encyclopedia focuses on Indiana state law. A number of other states also have their own state-specific encyclopedias.

American Law Reports ( ALR ) are annotations that synopsize various cases on narrow legal topics. Each annotation covers a different topic, and provides a leading or typical case on the topic, plus cases from different jurisdictions that follow different rules, or cases where different facts applying the same rule led to different outcomes. The annotations also refer to other secondary sources.

Legal periodicals include several different types of publications such as law reviews from academic institutions or organizations, bar journals, and commercial journals/newspapers/newsletters. Legal periodicals feature articles that describe the current state of the law and often explore underlying policies. They also critique laws, court decisions, and policies, and often advocate for changes. Articles also discuss emerging issues and notify the profession of new developments. Law reviews can be useful for in-depth coverage on narrow topics, and references to primary and other secondary sources. However, content can become outdated and researchers must be mindful of biases in articles.

Treatises/Hornbooks/Practice Guides are a type of secondary source that provides comprehensive coverage of a legal subject. It could be broad, such as a treatise covering all of contract law, or very narrow such as a treatise focused only on search and seizure cases. These sources are good when you have some general background on the topic, but you need more in-depth coverage of the legal rules and policies. Treatises are generally well organized, and provide you with finding aids (index, table of contents, etc.) and extensive footnotes or endnotes that will lead you to primary sources like cases, statutes, and regulations. They may also include appendices with supporting material like forms. However, treatises may not be updated as frequently as other sources and may not cover your specific issue or jurisdiction.

Citation and Writing Style

Legal Writing in Plain English Bryan A. Garner University of Chicago Press, 2001. Call # KF 250 .G373 2001 Location: Law Library, 3rd Floor Provides lawyers, judges, paralegals, law students, and legal scholars with sound advice and practical tools for improving their written work. The leading guide to clear writing in the field, this book offers valuable insights into the writing process: how to organize ideas, create and refine prose, and improve editing skills. This guide uses real-life writing samples that Garner has gathered through decades of teaching experience. Includes sets of basic, intermediate, and advanced exercises in each section.
The Elements of Legal Style Bryan A. Garner Oxford University Press, 2002. Call # KF 250 .G37 2002 Location: Law Library, 1st Floor, Reference This book explains the full range of what legal writers need to know: mechanics, word choice, structure, and rhetoric, as well as all the special conventions that legal writers should follow in using headings, defined terms, quotations, and many other devices. Garner also provides examples from highly regarded legal writers, including Oliver Wendell Holmes, Clarence Darrow, Frank Easterbrook, and Antonin Scalia.
Grammarly Blog Blog featuring helpful information about quirks of the English language, for example when to use "affect" or "effect" and other tips. Use the search feature to locate an article relevant to your grammar query.
Plain English for Lawyers Richard C. Wydick Carolina Academic Press, 2005. Call # KF 250 .W9 2005 Location: Law Library, 3rd Floor Award-winning book that contains guidance to improve the writing of lawyers and law students and to promote the modern trend toward a clear, plain style of legal writing. Includes exercises at the end of each chapter.
The Chicago Manual of Style University of Chicago Press, 2010. Call # Z 253 .U69 2010 Location: Law Library, 2nd Floor While not addressing legal writing specifically, The Chicago Manual of Style is one of the most widely used and respected style guides in the United States. It focuses on American English and deals with aspects of editorial practice, including grammar and usage, as well as document preparation and formatting.
The Chicago Manual of Style (Online) Bryan A. Garner and William S. Strong The University of Chicago Press, 2017. Online edition: use the link above to view record in IUCAT, then click the Access link (for IU students only).
The Bluebook Compiled by the editors of the Columbia Law Review, the Harvard Law Review, the University of Pennsylvania Law Review, and the Yale Law Journal. Harvard Law Review Association, 2015. Call # KF245 .B58 2015 Location: Law Library, 1st Floor, Circulation Desk The Bluebook: A Uniform System of Citation is a style guide that prescribes the most widely used legal citation system in the United States. The Bluebook is taught and used at a majority of U.S. law schools, law reviews and journals, and used in a majority of U.S. federal courts.
User's Guide to the Bluebook Alan L. Dworsky William S. Hein & Co., Inc., 2015. Call # KF 245 .D853 2015 Location: Law Library, Circulation Desk "This User's Guide is written for practitioners (law students, law clerks, lawyers, legal secretaries and paralegals), and is designed to make the task of mastering citation form as easy and painless as possible. To help alleviate the obstacles faced when using proper citation form, this text is set up as a how-to manual with a step-by-step approach to learning the basic skills of citation and includes the numbers of the relevant Bluebook rules under most chapter subheadings for easy reference when more information is needed"--Provided by the publisher.
Legal Citation in a Nutshell Larry L. Teply West Academic Publishing, 2016. Call # KF 245 .T47 2016 Location: Law Library, 1st Floor, Circulation Desk This book is designed to ease the task of learning legal citation. It initially focuses on conventions that underlie all accepted forms and systems of legal citation. Building on that understanding and an explanation of the “process” of using citations in legal writing, the book then discusses and illustrates the basic rules.
Introduction to Basic Legal Citation (Online) Peter W. Martin Cornell Legal Information Institute, 2017. Free online resource. Includes a thorough review of the relevant rules of appellate practice of federal and state courts. It takes account of the latest edition of The Bluebook, published in 2015, and provides a correlation table between this free online citation guide and the Bluebook.
Last Updated: Oct 24, 2019 11:00 AM
URL: https://law.indiana.libguides.com/dissertationguide

Trinity College Dublin, The University of Dublin

Trinity Search

Trinity menu.

Faculties and Schools
Trinity Courses
Trinity Research

Data Protection

You are here Research > Legal Basis for Research

Legal Basis for Research

Primary use of data.

In advance of any data collection, Researchers must inform participants of the legal basis under GDPR.

Personal Data

We advise researchers to rely on Article 6 (1)(e) GDPR quoted in full below:

It is a primary object and function of the University under the Irish Universities Act 1997, (section 12 (a),(j) and section 13 (b)) to promote and facilitate research.

Special Category Personal Data (or Sensitive Personal Data)

We advise researchers to rely on Article 9(2)(j) GDPR quoted in full below:

Secondary Data Use – Legal Basis for Research

If researchers wish to use personal data for a secondary use, such use is presumed compatible with the original purpose – if the research is in the public interest (Article 5(1) GDPR).

Researchers should carry out due diligence on any third party provider of data, and Data Transfer Agreements should be put in place to record any transfers into Trinity College Dublin.

Explainer: Legal Basis

On what basis is your data being processed?

On what grounds?

The ‘legal basis’ is the foundation for data processing under the General Data Protection Regulation (GDPR). This means that when an organisation wants to process personal data, there is a need to identify specific legal grounds for the processing. ‌ ‌In other words: on what grounds is the organisation processing your data?

Directed Research Projects

Getting Started
Preparing to Research
The Research Process

Structuring Your Paper

Writing tips, writing resources.

Checking your Sources
Getting it Published

There is no strict structure to writing a legal research paper. Unlike legal memos written for class or documents prepared for court proceedings that require formatted headings such as "Question Presented," "Statement of Facts," etc., legal research papers are not required to contain prescribed content or abide by a particular structure.

That said, below is a typical approach to organizing the content of your research project.

Introduction (clear statement of your thesis)
Background information (what is the existing law, if any)
The problem (explain why the status quo does't work)
Recommendation for change (what can be done to improve the field and how)
Conclusion (tie back to your thesis)

If you have any questions about formatting your research project, you should seek advice from your faculty advisor. Below are some basic guidelines, but keep in mind formatting requirements set forth by your faculty advisor will always supersede instructions provided here.

Generally, directed research papers are formatted as follows:

12-point font (Times New Roman or similar)
Double-spaced lines
One-inch margins on both sides, top, and bottom
10-point font for footnotes (same font as text)
Bluebook style and rules for all footnotes citations
Roman numerals and/or letter headings and subheadings (same font as text but bolded and/or underlined)
Numbered pages in the footer (same font as text)

Table of Contents

Although not required (unless your faculty advisor states otherwise), a table of contents can be helpful to provide your reader with an overview of your research paper and direct them to certain sections. Your table of contents should mirror your headings and subheadings. Below is an example of a table of contents.

When to Cite

You must include a citation every time you refer to, paraphrase, or quote a law, case, or another's work. Most of your sentences will include a citation. Additionally, when you cite to a law, always cite to the primary source.

How to Cite

The Bluebook, formally titled The Bluebook: A Uniform System of Citation , is the style manual for citing to legal documents within the United States. You should use the Bluebook for all your citations in your legal paper. The white page section contain the citation rules for legal academic publications.

Writing a Strong Introduction

Your introduction is arguably the most important section of your paper because many people will decide to continue reading based on the introduction. It must grab the reader's attention and explain why what you are writing about is important.

Essentially, the reader should be able to skim the rest of your paper after reading your introduction and have a good understanding of its layout and arguments. A good introduction should present the theme of the paper in a succinct manner while providing an overview of your paper.

Generally, a strong introduction will

State the legal problem/issue;
Describe why it is important and how your paper contributes to the discussion;
Provide a road map of your paper; and
State your conclusion.

Being Objective & Subjective

After your introduction, you should discuss background information on the issue you chose to write about. This should be an objective overview of the relevant facts and existing law. Your objective background information section should not be an all encompassing. Keep this portion of your paper focused on the essential law and relevant facts that support your recommendation for change.

The bulk of your paper lays in your discussion of the problem and recommendation for change. This is the subjective portion of your paper. In this section you should extract the relevant objective material to support your subjective analysis.

Writing a Strong Conclusion

Your conclusion should restate your thesis, summarize your major points, and remind the reader why the issue you've chosen is important. The conclusion should essentially reword your introduction in a condensed fashion.

<< Previous: The Research Process
Next: Checking your Sources >>
Last Updated: Oct 21, 2022 4:32 PM
URL: https://guides.law.stanford.edu/c.php?g=1255722

Stanford Home
Maps & Directions
Search Stanford
Emergency Info
Terms of Use
Non-Discrimination
Accessibility

Resources for legal writing

Introduction
Essays, exams and case notes

Selected books

Locate uq school of law theses, training options, browse subject headings, online resources.

Professional writing
Other resources

Services for Higher Degree by Research students

Academic writing
Graduate students
Dissertations, Academic
Law -- Study and teaching (Higher)

Thesis preparation (formatting, word limits, templates)
Thesis submission (submission requirements, iThenticate, eSpace submission)
Thesis examination

The Graduate School also offers many workshops that may help with your research project.

<< Previous: Essays, exams and case notes
Next: Professional writing >>
Last Updated: Nov 3, 2023 9:21 AM
URL: https://guides.library.uq.edu.au/how-to-find/legal-writing

Have a language expert improve your writing

Run a free plagiarism check in 10 minutes, generate accurate citations for free.

Knowledge Base
Dissertation
What Is a Thesis? | Ultimate Guide & Examples

What Is a Thesis? | Ultimate Guide & Examples

Published on September 14, 2022 by Tegan George . Revised on November 21, 2023.

A thesis is a type of research paper based on your original research. It is usually submitted as the final step of a master’s program or a capstone to a bachelor’s degree.

Writing a thesis can be a daunting experience. Other than a dissertation , it is one of the longest pieces of writing students typically complete. It relies on your ability to conduct research from start to finish: choosing a relevant topic , crafting a proposal , designing your research , collecting data , developing a robust analysis, drawing strong conclusions , and writing concisely .

Thesis template

You can also download our full thesis template in the format of your choice below. Our template includes a ready-made table of contents , as well as guidance for what each chapter should include. It’s easy to make it your own, and can help you get started.

Download Word template Download Google Docs template

Instantly correct all language mistakes in your text

Upload your document to correct all your mistakes in minutes

Thesis vs. thesis statement, how to structure a thesis, acknowledgements or preface, list of figures and tables, list of abbreviations, introduction, literature review, methodology, reference list, proofreading and editing, defending your thesis, other interesting articles, frequently asked questions about theses.

You may have heard the word thesis as a standalone term or as a component of academic writing called a thesis statement . Keep in mind that these are two very different things.

A thesis statement is a very common component of an essay, particularly in the humanities. It usually comprises 1 or 2 sentences in the introduction of your essay , and should clearly and concisely summarize the central points of your academic essay .
A thesis is a long-form piece of academic writing, often taking more than a full semester to complete. It is generally a degree requirement for Master’s programs, and is also sometimes required to complete a bachelor’s degree in liberal arts colleges.
In the US, a dissertation is generally written as a final step toward obtaining a PhD.
In other countries (particularly the UK), a dissertation is generally written at the bachelor’s or master’s level.

Prevent plagiarism. Run a free check.

The final structure of your thesis depends on a variety of components, such as:

Your discipline
Your theoretical approach

Humanities theses are often structured more like a longer-form essay . Just like in an essay, you build an argument to support a central thesis.

In both hard and social sciences, theses typically include an introduction , literature review , methodology section , results section , discussion section , and conclusion section . These are each presented in their own dedicated section or chapter. In some cases, you might want to add an appendix .

Thesis examples

We’ve compiled a short list of thesis examples to help you get started.

Example thesis #1: “Abolition, Africans, and Abstraction: the Influence of the ‘Noble Savage’ on British and French Antislavery Thought, 1787-1807” by Suchait Kahlon.
Example thesis #2: “’A Starving Man Helping Another Starving Man’: UNRRA, India, and the Genesis of Global Relief, 1943-1947″ by Julian Saint Reiman.

The very first page of your thesis contains all necessary identifying information, including:

Your full title
Your full name
Your department
Your institution and degree program
Your submission date.

Sometimes the title page also includes your student ID, the name of your supervisor, or the university’s logo. Check out your university’s guidelines if you’re not sure.

Theoretical framework

Your literature review can often form the basis for your theoretical framework, but these are not the same thing. A theoretical framework defines and analyzes the concepts and theories that your research hinges on.

Cite this Scribbr article

If you want to cite this source, you can copy and paste the citation or click the “Cite this Scribbr article” button to automatically add the citation to our free Citation Generator.

George, T. (2023, November 21). What Is a Thesis? | Ultimate Guide & Examples. Scribbr. Retrieved April 15, 2024, from https://www.scribbr.com/dissertation/thesis/

Is this article helpful?

Tegan George

Other students also liked, dissertation & thesis outline | example & free templates, writing strong research questions | criteria & examples, 10 research question examples to guide your research project, "i thought ai proofreading was useless but..".

I've been using Scribbr for years now and I know it's a service that won't disappoint. It does a good job spotting mistakes”

Antitrust Law
Artificial intelligence
Guest Professors
Competition Stories
Antitrust Antidote
Crane’s Cartel
Computational Legal Futures
DigiConsumers
Who are we?
Submit an article

Tips to write a great master thesis (in law)

The below text has not been heavily edited. Take it as a transcript of the above video, not proper writing.

Welcome. My objective with this video is to help you score a good grade for your master’s thesis or a final paper. I have about 30 tips for you. Now, sorry to disappoint you already, but there is no magic. Writing a good master thesis requires very hard work. My tips are intended to help you *if* you are willing to work hard — so you don’t waste your time and effort. In a sense, they are here to channel your energy and goodwill. Now, do not take those tips at face value. I prepared this list based on my personal experience supervising master theses, but of course, feel free to disagree or to apply other methods that work best for you. Importantly, always ask your master thesis supervisor for her or his guidance.

The first subject I want to discuss relates to the substance of your master thesis.

First , you need to choose a subject that you like . Do not let anyone decide what is the subject you will write about. Also, do not follow trends or what might look like a good subject to score a good grade. Now, that being said, you should also choose a subject that matters, meaning that if you come to some results, those results should be interesting to other people than you.

Two , choose *one* subject only and explore that subject entirely. Do not be too broad. 95% of the time, the initial scope of master theses is too broad. I get it, you want to write a master’s thesis that makes an impact, and, to achieve that, you might be under the impression that you need to tackle a vast subject. But in fact, the way to go is to write about something feasible and to put a concrete proposal on the table — not the other way around. After all, 0 x 10 = 0, while 0 + 1 = 1, isn’t it?!

Three , your research question should be just one easy sentence long . “Easy“ means that your research question should fit on a Word document *single* line and that your fellow classmates should be able to understand what it says.

Fourth , if you are a law student, make your research question legal . Of course, it doesn’t mean that you cannot rely on economic thinking or computer science, but the question you will answer should be legal in nature.

Fifth , you should have one hypothesis , meaning something you think can be true and that you can test. Testing doesn’t mean that you should model your question, but it means that you should be following several steps that will lead you to a proper result. That’s a very important point. A good master thesis is one for which you do not know the answer before you start. It’s one for which you need to build on different steps to get from results to results.

Sixth , in your introduction, you should summarize the state of the literature . Put differently, you should say where research is already providing us with answers and what is the gap in the literature you want to address.

Seventh , once you have your subject, research question, and hypothesis, you need to come up with a concrete plan of action . This means that you need to explain — very precisely — what you’re going to do and how this will lead you to test your hypothesis. If you don’t have such a plan of action, your thesis will be imprecise. In short, you need to go somewhere with your writing instead of walking around your subject.

Okay, we leave the substance now and go to the writing part.

First , sentences, paragraphs, and chapters should build on top of previous ones, meaning they should not be interchangeable. This implies that you need to explain and prove something before moving on to the next step. I know this is hard. And in fact, this is where I see the most struggle when grading master theses. But you should be spending time on the building part and asking yourself the following question: “is the flow of my writing logical?“

Two , when writing, you should ask yourself another question: “ and then what? “ This means two things. First, can you get a step further? And second, does it matter? For example, if you say the Data Act regulates smart contracts, you want to go a step deeper and explain what the regulation does, and also, explain why it matters to understand it.

Three , don’t be descriptive . Usually, the first chapters I receive are descriptive because this is where you started from and you want to include these descriptions to “fill in the space.“ But each paragraph should matter. This means that each paragraph should be absolutely necessary to prove your points. If you can cut out one paragraph without losing the flow of your master thesis, then do it. In concrete terms, chapters that describe the functioning of a specific technology or the inside of a new regulation should be removed. Instead, your explanation should support your overall message at any time, meaning that you *can* explain a technical point, but do it in the context of an argument.

Four , do not use the passive voice (e.g., “the passive shall not be used“). Also, do not use “it.“ And “this.“ And similar undefined words.

Five , most of what you write should not appear in the final version of your master thesis. Good writers eliminate 90% of what they write just to keep the absolute substance. You should reach the stage where you *enjoy* removing paragraphs because you know it makes your writing clear.

Six , start all your paragraphs with a short sentence — less than one line — summarizing the idea of the entire paragraph. Yes, this means that each paragraph should have only one idea. You will see that doing so will actually force you to put your thoughts in order.

Seven , write short sentences .

Eight , a good master thesis has many diverse footnotes . You want to refer to the latest literature, the latest cases. And you want to make sure that you are quoting the most cited articles in your field of research. And you want to avoid having more than two footnotes in a row referring to the same source.

Nine , when you quote a source, always explain why you are quoting it. Put the explanation between brackets, after the reference. And please, also put the page number. For example, do not quote “Brian Arthur, The Nature of Technology: What It Is And How It Evolves (Free Press, 2009)“, but quote, “Brian Arthur, The Nature of Technology: What It Is And How It Evolves, 25 (Free Press, 2009) (making a point that new technologies arose as combinations of other technologies)“. Always do that.

Now, we leave the writing part. I want to give you some concrete tips when it comes to the method .

First , very important: * never * miss deadlines .

Second , pay the greatest attention to your footnotes and language . In fact, in all likelihood, the very first thing that your professor will check out when opening your master’s thesis are footnotes and language. This means that your footnotes must be absolutely perfect. You can usually choose the citation style that you prefer — unless one is imposed by your master’s supervisor — but once you’ve chosen one, you must stick to it. Also, if you know that you would like to publish your master thesis in the form of an article, try to identify which citation style is imposed by the journal that you like, and apply it.

Three , you want to source all of your claims . It’s not because you write on a novel subject that you shouldn’t build on the existing literature. This means that one page without at least a few footnotes is extremely suspicious.

Four , when you read an article, you should take all the good elements out of it so that you *never* have to open it again. This means that you need to copy-paste the good paragraphs and the page number in which they appear.

Five , you need to read *everything* that has been written on your subject. If there’s too much, your subject is too broad. That is why you want your research question to be narrow. I’m afraid there is no way around reading it all. The risks are too big for you to take a chance: if you repeat something that has been said already, your master thesis will be nothing more than a nice summary. And if your supervisor knows about this existing body of research, this is a recipe for failure.

Six , when you read, you must write , take notes. This means that you should start writing on day one. Do not wait until the end of your master thesis to write because it does not work. You should write, write, write.

Seven , once you have read everything and you have taken notes, try to group articles by subjects or ideas. When you do that, you will see that a map for your master thesis will emerge out of the process.

Eight , you want to use Evernote or similar software. The idea is to centralize all the sources that you have found in just one single space. Why? Because first, it allows you to research specific words within all documents that you have found in just one second. And two, it allows you to put your notes next to the sources you have found.

Nine , do not lose time using citation software such as Zotero. This is a controversial statement. But I think that in the context of your master thesis, using such software really is not a good idea. You would need to enter manually all the meta information of the sources you have found (page numbers, publication, etc.) to be able to generate citations. This will amount to a loss of time because you do not want to use the same sources several times.

Ten , start downloading academic articles where they appear in their published form . This way, you will have the right page number that you can cite. HeinOnline is a good one for that. But of course, HeinOnline does not have everything. So you also need to check Google Scholar, Google, SSRN, and other platforms and aggregators.

Eleven , do not think that you can finish chapter one and then write chapter two, and then write chapter three, and so on and so forth. You need to write the first draft of everything , and go back at it over and over again. You need to rewrite, rewrite and rewrite once again.

Twelve , and this is my final point, when you gather the data, for example, a list of cases that you want to analyze, you *must* explain why you have decided not to include more data (such as cases). Put differently, you want to explain why you have selected only those cases, this specific dataset . For example, explain that you have taken all the cases in a specific category. If you have selected cases, explain your methodology. Finally, keep this data in a separate folder because your master thesis supervisor — and, later on, a journal — may want to access the data.

Thank you very much for your interest. Take care of yourself and, if you can, someone else too. Cheers.

Dr. Thibault Schrepel Associate Professor of Law at VU Amsterdam Faculty Affiliate at Stanford University CodeX Center Invited Professor at Sciences Po Paris & Panthéon-Sorbonne

Bridging Disciplinary Disconnects: The Role of Legal Experts in Legal NLP

Herbert Hovenkamp: “Antitrust Market Definition: the Hypothetical Monopolist and Brown Shoe”

Reading suggestions – March 2024

The Apple Music Streaming Case: The Good, The Bad, and The Ugly

Daron Acemoglu and Simon Johnson: “The Urgent Need to Tax Digital Advertising”

Introducing the “Scaling Theory” podcast

Ela Głowicka & Jan Málek: “Digital Empires Reinforced? Generative AI Value Chain”

Privacy or Antitrust First? Answering with Agent-Based Modeling

Table of Contents
Random Entry
Chronological
Editorial Information
About the SEP
Editorial Board
How to Cite the SEP
Special Characters
Advanced Tools
Support the SEP
PDFs for SEP Friends
Make a Donation
SEPIA for Libraries
Entry Contents

Bibliography

Academic tools.

Friends PDF Preview
Author and Citation Info
Back to Top

Legal Positivism

Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790–1859) formulated it thus:

The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. (1832 [1995: 157])

The positivist thesis does not say that law’s merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist . Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.). Austin thought the thesis “simple and glaring”. While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings.

1. Development and Influence

2. the existence and sources of law, 3. moral principles and the boundaries of law, 4.1 the fallibility thesis, 4.2 the separability thesis, 4.3 the neutrality thesis, other internet resources, related entries.

Legal positivism has a long history and a broad influence. It has antecedents in ancient political philosophy and is discussed, and the term itself introduced, in mediaeval legal and political thought (see Finnis 1996). The modern doctrine, however, owes little to these forbears. Its most important roots lie in the political philosophies of Hobbes and Hume, and its first full elaboration is due to Jeremy Bentham (1748–1832) whose account Austin adopted, modified, and popularized. For much of the next century an amalgam of their views, according to which law is the command of a sovereign backed by force, dominated English philosophical reflection about law. By the mid-twentieth century, however, this account had lost its influence among working legal philosophers. Its emphasis on legislative institutions was replaced by a focus on law-applying institutions such as courts, and its insistence of the role of coercive force gave way to theories emphasizing the systematic and normative character of law. The most important architects of contemporary legal positivism are the Austrian jurist Hans Kelsen (1881–1973) and the two dominating figures in the analytic philosophy of law, H.L.A. Hart (1907–92) and Joseph Raz, among whom there are clear lines of influence, but also important contrasts. Legal positivism’s importance, however, is not confined to the philosophy of law. It can be seen throughout social theory, particularly in the works of Marx, Weber, and Durkheim, and also among many lawyers, including the American “legal realists” and most contemporary feminist scholars. Although they disagree on many other points, these writers all acknowledge that law is essentially a matter of social fact. Some of them are, it is true, uncomfortable with the label “legal positivism” and therefore hope to escape it. Their discomfort is sometimes the product of confusion. Lawyers often use “positivist” abusively, to condemn a formalistic doctrine according to which law is always clear and, however pointless or wrong, is to be rigorously applied by officials and obeyed by subjects. It is doubtful that anyone ever held this view, but it is in any case false and has nothing to do with legal positivism. Among the philosophically literate another, more intelligible, misunderstanding may interfere. Legal positivism is here sometimes associated with the homonymic but independent doctrines of logical positivism (the meaning of a sentence is its mode of verification) or sociological positivism (social phenomena can be studied only through the methods of natural science). While there are historical connections and commonalities of temper among these ideas, they are essentially different. The view that the existence and content of law depends ultimately on social facts does not rest on a particular semantic thesis, and it is compatible with a range of theories about how one investigates the social world, including non-naturalistic accounts. To say that the existence of law depends on facts and not on its merits is a thesis about the relation among laws, facts, and merits, and not otherwise a thesis about the individual relata. Hence, many traditional “natural law” moral doctrines—including the belief in a universal, objective morality grounded in human nature—do not contradict legal positivism. The only influential positivist moral theories are the views that moral norms are valid only if they have a source in divine commands or in social conventions. Such theists and relativists apply to morality the constraints that legal positivists think hold for law.

Every human society has some form of social order, some way of marking and encouraging approved behavior, deterring disapproved behavior, and resolving disputes about that behavior. What then is distinctive of societies with legal systems and, within those societies, of their law? Before exploring some positivist answers, it bears emphasizing that these are not the only questions worth asking about law. While an understanding of the nature of law requires an account of what makes law distinctive, it also requires an understanding of what it has in common with other forms of social control. Some Marxists are positivists about the nature of law while insisting that its distinguishing characteristics matter less than its role in replicating and facilitating other forms of domination. (Though other Marxists disagree: see Pashukanis 1924). They think that the specific nature of law casts little light on their primary concerns. But one can hardly know that in advance; it depends on what the nature of law is.

For Bentham and Austin, law is a phenomenon of societies with a sovereign : a determinate person or group who have supreme and absolute de facto power—they are obeyed by all or most others but do not themselves similarly obey anyone else. The laws in that society are a subset of the sovereign’s commands : general orders that apply to classes of actions and people and that are backed up by threat of force or “sanction”. This imperatival theory is positivist, for it identifies the existence of law with patterns of command and obedience that can be ascertained without considering whether the sovereign has a moral right to rule or whether their commands are meritorious. It has two other distinctive features. The theory is monistic : it represents all laws as having a single form, imposing obligations on their subjects, though not on the sovereign itself. The imperativalist acknowledges that ultimate legislative power may be self-limiting, or limited externally by what public opinion will tolerate, and also that legal systems contain provisions that are not imperatives (for example, permissions, definitions, and so on). But they regard these as part of the non-legal material that is necessary for every legal system. (Austin is a bit more liberal on this point). The theory is also reductivist , for it maintains that the normative language used in describing and stating the law—talk of authority, rights, obligations, and so on—can all be analyzed without remainder in factual terms, typically as concatenations of statements about power and obedience.

Imperatival theories are now without influence in legal philosophy (but see Ladenson 1980 and Morison 1982). What survives of their outlook is the idea that legal theory must ultimately be rooted in some account of the political system, an insight that came to be shared by all major positivists save Kelsen. Their particular conception of a society under a sovereign commander, however, is friendless (except among Foucauldians, who strangely take this relic as the ideal-type of what they call “juridical” power). It is clear that in complex societies there may be no one who has all the attributes of sovereignty, for ultimate authority may be divided among organs and may itself be limited by law. Moreover, sovereignty is a normative concept. A legislator is one who has authority to make laws, and not merely someone with great social power, and it is doubtful that “habits of obedience” is a candidate reduction for explaining authority. To distinguish genuine obedience from coincidental compliance we need something like the idea of subjects being oriented to, or guided by, the commands. Explicating this will carry us far from the power-based notions with which classical positivism hoped to work. The imperativalists’ account of the character of individual laws is also subject to decisive objections (Hart 1961 [2012: 26–78]; and Hacker 1973). Treating all laws as commands conceals important differences in their social functions, in the ways they operate in practical reasoning, and in the sort of justifications to which they are liable. For instance, laws conferring the power to marry command nothing; they do not obligate people to marry, or even to marry according to the prescribed formalities. Nor is reductivism any more plausible here: we speak of legal obligations when there is no probability of sanctions being applied and when there is no provision for sanctions (as in the duty of courts to apply the law). Moreover, we take the existence of legal obligations to be a reason for imposing sanctions, not a consequence or constituent of it.

Hans Kelsen retains the imperativalists’ monism but abandons their reductivism. On his view, law is characterized by a singular form and basic norm . The form of every law is that of a conditional order, directed at the courts, to apply sanctions if a certain behavior (the “delict”) is performed. On this view, law is an indirect system of guidance: it does not tell subjects what to do; it tells officials what to do to its subjects under certain conditions. Thus, what we ordinarily regard as the legal duty not to steal is for Kelsen merely a logical correlate of the primary norm which stipulates a sanction for stealing (1945 [1961: 61]). The objections to imperatival monism apply also to this more sophisticated version: the reduction misses important facts, such as the point of having a prohibition on theft; the law is not indifferent between, on the one hand, people not stealing and, on the other, stealing and suffering the sanctions. But in one respect the conditional sanction theory is in worse shape than is imperativalism, for it has no way to fix on the delict as the duty-defining condition of the sanction—that is but one of a large number of relevant antecedent conditions, including the legal capacity of the offender, the jurisdiction of the judge, the constitutionality of the offense, and so forth. Which among all these is the content of a legal duty?

Kelsen’s most important contribution lies in his attack on reductivism and his doctrine of the “basic norm”. He maintains that law is a normative domain and must understood as such. Might does not make right—not even legal right—so the philosophy of law must explain the fact that law imposes obligations on its subjects. Moreover, law is a normative system : “Law is not, as it is sometimes said, a rule. It is a set of rules having the kind of unity we understand by a system” (1945 [1961: 3]). For the imperativalists, the unity of a legal system consists in the fact that all its laws are commanded by one sovereign. For Kelsen, it consists in the fact that they are all links in one chain of authority. For example, a by-law is legally valid because it is created by a corporation lawfully exercising the powers conferred on it by the legislature, which confers those powers in a manner provided by the constitution, which was itself created in a way provided by an earlier constitution. But what about the very first constitution, historically speaking? Its authority, says Kelsen, is “presupposed”. The condition for interpreting any legal norm as binding is that the first constitution is validated by the following “basic norm:” “ the original constitution is to be obeyed ”. Now, the basic norm cannot be a legal norm—we cannot explain the bindingness of law by reference to more law without an infinite regress. Nor can it be a social fact, for Kelsen maintains that the reason for the validity of a norm must always be another norm—no ought from is. It follows, then, that a legal system must consist of norms all the way down. It bottoms in a hypothetical, transcendental norm that is the condition of the intelligibility of any (and all) other norms as binding. To “presuppose” this basic norm is not to endorse it as good or just—presupposition is a cognitive stance only—but it is, Kelsen thinks, the necessary precondition for a non-reductivist account of law as a normative system.

There are many difficulties with this, not least of which is the fact that if we are going to accept the basic norm as the solution it is not clear what we thought was the problem in the first place. One cannot say both that presupposing the basic norm is what validates all inferior norms and also that an inferior norm is part of the legal system only if it is connected by a chain of validity to the basic norm. We need a way into the circle. Moreover, it draws the boundaries of legal systems incorrectly. The Canadian Constitution of 1982 was lawfully created by an Act of the U.K. Parliament, and on that basis Canadian law and English law should be parts of a single legal system, rooted in one basic norm: “The (first) U.K. constitution is to be obeyed”. Yet English law is not binding in Canada, and a purported repeal of the Constitution Act by the U.K. would be without legal effect there.

If law cannot ultimately be grounded in force, or in a presupposed norm, on what does its authority rest? The most influential solution is perhaps H.L.A. Hart’s. His solution resembles Kelsen’s in its emphasis on the normative foundations of legal systems, but Hart rejects Kelsen’s transcendentalist, Kantian view of authority in favor of an empirical, Weberian one. For Hart, the authority of law is social. The ultimate criterion of validity in a legal system is neither a legal norm nor a presupposed norm, but a social rule that exists only because it is actually practiced, that is, used to guide conduct. Law ultimately rests on custom: customs about who shall have the authority to decide disputes, what they shall treat as binding reasons for decision, i.e., as sources of law, and how laws may be changed. Of these three “secondary rules”, as Hart calls them, the source-determining rule of recognition is most important, for it specifies the ultimate criteria of validity in the legal system. It exists only because it is practiced by officials, and it is not only that the recognition rule best explains their practice, it is the rule to which they actually appeal in arguments about what standards they are bound to apply. Hart’s account is therefore in one sense conventionalist (see Marmor 1998 and Coleman 2001): ultimate legal rules are social norms, although they are neither the product of express agreement nor conventions in the Schelling-Lewis sense (see Green 1999). Thus for Hart too the legal system is rule-based all the way down, but at its root is a social norm that has the kind of normative force that customs have. It is a regularity of behavior regarding which officials take “the internal point of view:” they use it as a standard for guiding and evaluating their own and others’ behavior, and this use is displayed in their conduct and speech, including the resort to various forms of social pressure to support the rule and the ready application of normative terms such as “duty” and “obligation” when invoking it.

Law, then, has its ultimate basis in the behaviors and attitudes of its officials. In the eyes of some this still seems to imply a mystifying reduction: how can we generate the oughts of the legal world from the is of official consensus? Concerns of this type part motivate Scott Shapiro’s understanding of law and his attempt to break with Hart’s theory: laws, he suggests, should be conceived of as “generalized plans, or planlike norms, issued by those who are authorized to plan for others” (2011: 155). Understanding law on the model of social planning, Shapiro suggests, frees us from misplaced concerns about its metaphysical basis. Just as you or I can adopt a plan for our day just by willing it, so a legal system’s officials can create or recognize plans for its subjects. To the extent there remains an issue, however, it is not clear that the notion of planning itself offers any deeper explanation. To begin with, planning, whether by an individual or a group, involves setting rules with the aim of achieving certain ends. So the ontology of plans folds into and becomes part of the more general ontology of rules on which Hart was rightly focused. Second, it is unclear whether the mechanics of law are accurately captured under the label of planning (is the law against theft, for example, to be thought of as a plan that people not deprive others of their property?—a somewhat implausible reading of the relevant injunction—or is the planning element exhausted by the decision to create the prohibition, in which case the law is not the plan). Nonetheless, Shapiro’s account helpfully reminds us that the theoretical complexity of law as a social kind does not render implausible an understanding of its foundation based in the everyday actions of its agents. In this he joins Hart.

It is an important feature of Hart’s account that the rule of recognition is an official custom, and not a standard necessarily shared by the broader community. If the imperativalists’ picture of the political system was pyramidal power, Hart’s is more like Weber’s rational bureaucracy. Law is normally a technical enterprise, characterized by a division of labor. Ordinary subjects’ contribution to the existence of law may therefore amount to no more than passive compliance, and in an extreme case perhaps less than this. Thus, Hart’s necessary and sufficient conditions for the existence of a legal system are that

those rules of behavior which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and…its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials. (1961 [2012: 116])

And this division of labor is not a normatively neutral fact about law; it is politically charged, for it sets up the possibility of law becoming remote from the life of a society, a hazard to which Hart is acutely alert (1961 [2012: 117]; cf. Waldron 1999 and Green 2008).

Although Hart introduces the rule of recognition through a speculative anthropology of how it might emerge in response to deficiencies in a customary social order, he is not committed to the view that law is a cultural achievement. To the contrary, the idea that legal order is always a good thing, and that societies without it are deficient, is a familiar element of many anti -positivist views, beginning with Henry Maine’s criticism of Austin on the ground that his theory would not apply to certain Indian villages. The objection embraces the error it seeks to avoid. It imperialistically assumes that it is always a bad thing to lack law, and then makes a dazzling inference from ought to is: if it is good to have law, then each society must have it, and the concept of law must be adjusted to show that it does. If one thinks that law is a many splendored thing, one will be tempted by a very wide understanding of law, for it would seem improper to charge others with missing out. Positivism releases the harness. Law is a distinctive form of political order, not a moral achievement, and whether it is necessary or even useful depends entirely on its content and context. Societies without law may be perfectly adapted to their environments, missing nothing.

A positivist account of the existence and content of law, along any of the above lines, offers a theory of the validity of law in one of the two main senses of that term (see Harris 1979: 107–111). Kelsen says that validity is the specific mode of existence of a norm. In this sense a valid law is one that is systemically valid in the jurisdiction—it is part of the legal system, and identified as such by virtue of its dependence on the system’s social sources. The idea is distinct from that of validity as moral propriety, i.e., a sound justification for respecting the norm. For the legal positivist, this depends on the norm’s merits. One indication that these senses differ is that one may know that a society has a legal system, and know what its laws are, without having any idea whether they are morally justified. For example, one may know that the law of ancient Athens included the punishment of ostracism without knowing whether it was justified, because one does not know enough about its effects, about the social context, and so forth.

No legal positivist argues that the systemic validity of law establishes its moral validity , i.e., that it should be obeyed by subjects or applied by judges. Even Hobbes, to whom this view is sometimes ascribed, required that law actually be able to keep the peace, failing which we owe it nothing. Bentham and Austin, as utilitarians, hold that such questions always turn on the consequences, and both acknowledge that disobedience is therefore sometimes fully justified. Kelsen insists that “The science of law does not prescribe that one ought to obey the commands of the creator of the constitution” (1960 [1967: 204]). Hart believes that law may generate a prima facie duty to obey, grounded in but also limited by fairness—so there is no obligation to unfair or pointless laws (Hart 1955: 185–186). Raz goes further still, arguing that there isn’t even a prima facie duty to obey the law, not even in a just state (Raz 1979 [2009: 233–249]). The peculiar accusation that positivists believe the law is always to be obeyed is without foundation. Indeed, Hart’s own view is that an overweening deference to law consorts more easily with theories that imbue it with moral ideals, permitting

an enormous overvaluation of the importance of the bare fact that a rule may be said to be a valid rule of law, as if this, once declared, was conclusive of the final moral question: “Ought this law to be obeyed?” (Hart 1958: 75)

The most influential criticisms of legal positivism all flow, in one way or another, from the suspicion that it fails to give morality its due. A theory that insists on the facticity of law seems to contribute little to our understanding that law has important functions in making human life go well, that the rule of law is a prized ideal, and that the language and practice of law is highly moralized. Accordingly, positivism’s critics maintain that the most important features of law are not to be found in its source-based character, but in law’s capacity to advance the common good, to secure human rights, or to govern with integrity.

It is beyond doubt that moral and political considerations bear on legal philosophy. As Finnis says, the reasons we have for establishing, maintaining or reforming law include moral reasons, and these reasons therefore shape our legal concepts (1980 [2011: 266–273] and 1996: 204). But which concepts? If one accepts, as Finnis does, that the existence and content of law can be identified without recourse to moral argument, and that “human law is artefact and artifice; and not a conclusion from moral premises” (1996: 205), it becomes hard to see how the natural law theory he develops rivals rather than accommodates the truth of legal positivism (see Gardner 2001, 225–227). This vitiates also Lon Fuller’s criticisms of Hart (Fuller 1958 and 1964). Fuller has two main points. First, he thinks that it isn’t enough for a legal system to rest on customary social rules, since law could not guide behavior without also being at least minimally clear, consistent, public, prospective and so on—that is, without exhibiting to some degree those virtues collectively called “the rule of law”. It suffices to note that this is consistent with law being source-based. Even if moral properties were identical with, or supervened upon, these rule-of-law properties, they do so in virtue of their rule-like character. Whatever virtues inhere in or follow from clear, consistent, prospective, and open practices can be found not only in law but in all other social practices with those features, including custom and positive morality. And such virtues, if they exist, are minor: there is little, if anything, to be said in favor of a clear, consistent, prospective, public and impartially administered system of racial segregation, for example. Fuller’s second worry is that if law is a matter of fact, then we are without an explanation of the duty to obey. He asks how “an amoral datum called law could have the peculiar quality of creating an obligation to obey it” (Fuller 1958: 656). One possibility he neglects is that it doesn’t. But even if Fuller is right in his unargued assumption, the “peculiar quality” whose existence he doubts is a familiar feature of many practices. Compare promises: whether a society has a practice of promising, and what someone has promised to do, are matters of social fact. Yet promising creates moral obligations of performance or compensation. An “amoral datum” may indeed figure, together with other premises, in a sound argument to moral conclusions.

While Finnis and Fuller’s views are thus compatible with the positivist thesis, the same cannot be said of Ronald Dworkin’s important works (Dworkin 1978, 1986 and 2011). Positivism’s most influential critic rejects the theory on every conceivable level. He denies that there can be any general theory of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its merits, and he rejects the whole institutional focus of positivism. A theory of law is for Dworkin a theory of how cases ought to be decided and it begins, not with an account of political organization, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects. Coercion must not be deployed, he claims,

except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified. (Dworkin 1986: 93)

A society has a legal system only when, and to the extent that, it honors this ideal, and its law is the set of all considerations that the courts of such a society would be morally justified in applying, whether or not those considerations are determined by any source. To identify the law of a given society we must always engage in moral and political argument, for the law is whatever requirements are consistent with an interpretation of its legal practices that shows them to be best justified in light of this animating ideal. In addition to these philosophical considerations, Dworkin invokes two features of the phenomenology of judging, as he sees it. He finds deep controversy among lawyers and judges about how important cases should be decided, and he finds diversity in the considerations that they hold relevant to deciding them. The controversy suggests to him that law cannot rest on an official consensus, and the diversity suggests that there is no single social rule that validates all relevant reasons, moral and non-moral, for judicial decisions.

Dworkin’s rich and complex arguments attracted various lines of reply from positivists. One response denies the relevance of the phenomenological claims. Controversy is a matter of degree, and a consensus-defeating amount of it is not proved by the existence of adversarial argument in the high courts, or indeed in any courts. As important is the broad range of settled law that gives rise to few doubts and which guides social life outside the courtroom (see Leiter 2009). As for the diversity argument, so far from being a refutation of positivism, this is an entailment of it. Positivism identifies law, not with all valid reasons for decision, but only with the source-based subset of them. It is no part of the positivist claim that the rule of recognition tells us how to decide cases, or even identifies all relevant reasons for a decision. Positivists accept that moral, political or economic considerations are properly operative in legal decisions, just as linguistic or logical ones are. Modus ponens holds in court as much as outside, but not because it was enacted by the legislature or decided by the judges, and the fact that there is no social rule that validates both modus ponens and also the Municipalities Act is true but irrelevant. The authority of principles of logic (or morality) is not something to be explained by legal philosophy; the authority of acts of Parliament must be; and accounting for the difference is a central task of the philosophy of law.

Other positivists respond differently to Dworkin’s phenomenological points, accepting their relevance but modifying the theory to accommodate them. So-called “inclusive positivists” (e.g., Soper, Lyons, Coleman, Waluchow (to whom the term is due), Kramer and Himma) argue that the merit-based considerations may indeed be part of the law, if they are explicitly or implicitly made so by source-based considerations. For example, Canada’s constitution explicitly authorizes for breach of Charter rights, “such remedy as the court considers appropriate and just in the circumstances”. In determining which remedies might be legally valid, judges are thus expressly told to take into account their morality. And judges may develop a settled practice of doing this whether or not it is required by any enactment; it may become customary practice in certain types of cases. Reference to moral principles may be implicit in the web of judge-made law, for instance in the common law principle that no one should profit from his own wrongdoing. Such moral considerations, inclusivists claim, are part of the law because the sources make them so , and thus Dworkin is right that the existence and content of law might turn on its merits, and wrong only in his explanation of this fact. Legal validity depends on morality, not because of the interpretative consequences of some ideal about how the government may use force, but because that is one of the things that may be customarily recognized as an ultimate determinant of legal validity. It is the sources that make the merits relevant.

To understand and assess this response some clarifications are needed. First, it is not plausible to hold that the merits are relevant to a judicial decision only when the sources make them so. It would be odd to think that justice is a reason for decision only because some source directs an official to decide justly. It is of the nature of justice that it properly bears on certain controversies. In legal decisions, especially important ones, moral and political considerations are present of their own authority; they do not need sources to propel them into action. On the contrary, we expect to see a source—a statute, a decision, or a convention—when judges are constrained not to appeal directly to the merits (see Raz 2004a). Second, the fact that there is moral language in judicial decisions does not establish the presence of moral tests for law, for sources come in various guises. What sounds like moral reasoning in the courts is sometimes really source-based reasoning. For example, when the Supreme Court of Canada says that a publication is criminally “obscene” only if it is harmful, it is not applying J.S. Mill’s harm principle, for what that court means by “harmful” is that which is regarded by the community as degrading or intolerable. That is a source-based test, not a moral one. This is just one of many appeals to positive morality, i.e., to the moral customs actually practiced by a given society, and no positivist denies that positive morality may be a source of law. Moreover, it is important to remember that law is dynamic and that even a decision that does apply morality itself becomes a source of law, in the first instance for the parties and possibly for others as well. Over time, by the doctrine of precedent where it exists or through the gradual emergence of an interpretative convention where it does not, this gives a factual edge to normative terms. Thus, if a court decides that money damages are in some instances not a “just remedy” then this fact will join with others in fixing what “justice” means for these purposes. This process may ultimately detach legal concepts from their moral analogs (thus, legal “murder” may require no intention to kill, legal “fault” no moral blameworthiness, an “equitable” remedy may be manifestly unfair, etc.). Bearing in mind these complications, however, there undeniably remains a great deal of moral reasoning in adjudication. Courts are often called on to decide what would reasonable, fair, just, cruel, etc. by explicit or implicit requirement of statute or common law, or because this is the only proper or intelligible way to decide. When the law itself licenses such reasoning should we understand it, with the inclusive positivist, to incorporate moral standards, or, as per the views of their rival, the exclusive positivist, only to make reference to moral principles?

Exclusive positivists offer two main arguments for stopping at social sources. The first is due to Raz (1994: 201–37) and has to do with law’s role in practical reasoning (for criticism see Perry 1989, Waluchow 1994, Coleman 2001, Dworkin 2002, Kramer 2004 and Himma 2019). Although law does not necessarily have legitimate authority, Raz suggests it lays claim to it, and can intelligibly do so only if it is the kind of thing that could have legitimate authority. It may fail, therefore, in certain ways only, for example, by being unjust, pointless, or ineffective. But law cannot fail to be a candidate authority, for it is constituted in that role by our political practices. According to Raz, practical authorities mediate between subjects and the ultimate reasons for which they should act. Authorities’ directives should be based on such reasons, and they are justified only when compliance with the directives makes it more likely that people will comply with the underlying reasons that apply to them. But they can do that , he suggests, only if is possible to know what the directives require independent of appeal to those underlying reasons. If law were to incorporate the moral standards to which it refers it would no longer be able to play this mediating role; identifying the law would require identifying the reasons underlying it. Because the nature of law is partly determined by its role in giving practical guidance, Raz concludes, there is theoretical reason for stopping at source-based considerations.

The second argument challenges an underlying idea of inclusive positivism, what we might call the Midas Principle. “Just as everything King Midas touched turned into gold, everything to which law refers becomes law …” (Kelsen 1945 [1961: 161]). Kelsen thought that it followed from this principle that

It is…possible for the legal order, by obliging the law-creating organs to respect or apply certain moral norms or political principles or opinions of experts to transform these norms, principles, or opinions into legal norms, and thus into sources of law. (Kelsen 1945 [1961: 132])

(Though he regarded this transformation as effected by a sort of tacit legislation.) If sound, the Midas Principle holds in general and not only with respect to morality, as Kelsen makes clear. Suppose then that the Income Tax Act penalizes overdue accounts at 8% per annum. In a relevant case, an official can determine the content of a legal obligation only by calculating compound interest. Does this make mathematics part of the law? A contrary indication is that it is not subject to the rules of change in a legal system—neither courts nor legislators can repeal or amend the law of commutativity. The same holds of other social norms, including the norms of foreign legal systems. A conflict-of-laws rule may direct a Canadian judge to apply Mexican law in a Canadian case. The conflicts rule is obviously part of the Canadian legal system. But the rule of Mexican law is not, for although Canadian officials can decide whether or not to apply it, they can neither change it nor repeal it, and the best explanation for its existence and content makes no reference to Canadian society or its political system. In like manner, moral standards, logic, mathematics, principles of statistical inference, or English grammar, though all properly applied in cases, are not themselves the law, for legal organs have applicative but not creative power over them. The inclusivist thesis is actually groping towards an important, but different, truth. Law is an open normative system (Raz 1975 [1990: 152–154]): it adopts and enforces many other standards, including moral norms and the rules of social groups. There is no warrant for adopting the Midas Principle to explain how or why it does this.

As noted above, Dworkin’s arguments against positivism depend upon claims about the phenomenology of adjudication and about the constraints imposed on jurisprudence by legal disagreement. Mark Greenberg’s recent work takes as its starting point many of Dworkin’s claims, but his conclusions are in several ways more radical (see Greenberg 2004 and 2014). Greenberg’s central argument against positivism is methodological: no one, he suggests, would deny that the content of the law depends at least in part upon social facts. However, the question of which facts—the semantic content or intended effect of legislation, for example—cannot be answered by reference to further of the same: “law practices…cannot determine their own relevance” (2004: 185). Appeal must therefore be made to other kinds of considerations—for Greenberg, considerations about the moral import of our social practices. It is positivism’s error to suggest that law could be practice-based all the way down. That the content of law depends upon social sources, however, is a truth borne out by law in general, as opposed to being established within local legal practices. There is a categorical difference between the validity of the sources thesis—a truth about law as a kind of social practice—and the claim that in the UK, for example, statute renders it is illegal to drive above 70 miles an hour on the motorway. In this way the former explains the latter without circularity, and without the need for appeal to morality.

4. Law and Its Merits

It may clarify the philosophical stakes in legal positivism by comparing it to a number of other theses with which it is sometimes wrongly identified, and not only by its opponents (see also Hart 1958, Füßer 1996, and Schauer 1996).

Law does not necessarily satisfy the conditions by which it is appropriately assessed (Lyons 1984: 63; Hart 1961 [2012: 185–186)]. Law should be just, but it may not be; it should promote the common good, but sometimes it doesn’t; it should protect moral rights, but it may fail miserably. This we may call the moral fallibility thesis. The thesis is correct, but it is not the exclusive property of positivism. Aquinas accepts it, Fuller accepts it, Finnis accepts it, and Dworkin accepts it. Only a crude misunderstanding of ideas like Aquinas’s claim that “an unjust law seems to be no law at all” might suggest the contrary. Law may have an essentially moral character and yet be morally deficient. Even if every law always does one kind of justice (formal justice; justice according to law), this does not entail that it does every kind of justice. Even if every law has a prima facie claim to be applied or obeyed, it does not follow that it has such a claim all things considered. The gap between these partial and conclusive judgments is all a natural law theory needs to accommodate the fallibility thesis. It is sometimes said that positivism gives a more secure grasp on the fallibility of law, for once we see that it is a social construction we will be less likely to accord it inappropriate deference and better prepared to engage in a clear-headed moral appraisal of the law. This claim appealed to several positivists, including Bentham and Hart. But while this might follow from the truth of positivism, it cannot provide an independent argument for it. If law has an essentially moral character then it is obfuscating, not clarifying, to describe it as a source-based structure of governance.

At one point, Hart identifies legal positivism with

the simple contention that it is no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so. (1961 [2012: 185–186])

Many other philosophers, encouraged also by the title of Hart’s famous essay, “Positivism and the Separation of Law and Morals”, (1958) treat the theory as the denial that there is a necessary connection between law and morality—they must be in some sense “separable” even if not in fact separate (Coleman 1982). The separability thesis is generally construed so as to tolerate any contingent connection between morality and law, provided only that it is conceivable that the connection might fail. Thus, the separability thesis is consistent with all of the following: (i) moral principles may be part of the law; (ii) law is usually, or even always in fact, valuable; (iii) the best explanation for the content of a society’s laws includes reference to the moral ideals current in that society; and (iv) a legal system cannot survive unless it is seen to be, and thus in some measure actually is, just. All four claims are counted by the separability thesis as contingent connections only; they do not hold of all possible legal systems—they probably don’t even hold of all historical legal systems. As merely contingent truths, it is said that they do not affect the concept of law itself. If we think of the positivist thesis this way, we might interpret the difference between exclusive and inclusive positivism in terms of the scope of the modal operator:

(EP) It is necessarily the case that there is no connection between law and morality.
(IP) It is not necessarily the case that there is a connection between law and morality.

In reality, however, legal positivism is not to be identified with either thesis: both are false. There are many necessary “connections”, trivial and non-trivial, between law and morality. As John Gardner notes, legal positivism takes a position on only one of them; it rejects any dependence of the existence of law on its merits (Gardner 2001). And with respect to this dependency relation, legal positivists are concerned with much more than the relationship between law and morality , for in the only sense in which they insist on a separation of law and morals they must insist also—and for the same reasons—on a separation of law and economics.

To exclude this dependency relation, however, is to leave intact many other interesting possibilities. For instance, it is possible that moral value derives from the existence of law (Raz 1975 [1990: 165–170]). If Hobbes is right, any order is better than chaos and in some circumstances order may be achievable only through positive law. Or perhaps in a Hegelian way every existing legal system expresses deliberate governance in a world otherwise dominated by chance; law is the spirit of the community come to self-consciousness. Notice that these claims are consistent with the fallibility thesis, for they do not deny that these supposedly good things might also bring evils, such as too much order or the will to power. Perhaps such derivative connections between law and morality are thought innocuous on the ground that they show more about human nature than they do about the nature of law. The same cannot be said of the following necessary connections between law and morality, each of which goes to the heart of our concept of law (on which see further Green 2008):

(1) Necessarily, law deals with moral matters.

Kelsen writes,

Just as natural and positive law govern the same subject-matter, and relate, therefore, to the same norm-object, namely the mutual relationships of men—so both also have in common the universal form of this governance, namely obligation . (Kelsen 1928 [1973: 34])

This is a matter of the content of all legal systems. Where there is law there is also morality, and they regulate the same matters by analogous techniques. Of course to say that law deals with morality’s subject matter is not to say that it does so well, and to say that all legal systems create obligations is not to endorse the duties so created. This notion is distinct from Hart’s “minimum content” thesis according to which there are basic rules governing violence, property, fidelity, and kinship that any legal system must encompass if it aims at the survival of social creatures like ourselves (Hart 1961 [2012: 193–200]). Hart regards this as a matter of “natural necessity” and in that measure is willing to qualify his endorsement of the separability thesis. But even a society that prefers national glory or the worship of gods to survival will charge its legal system with the same tasks its morality pursues. Unlike the rules of a health club, law has broad scope and reaches to the most important things in any society, whatever they may be. Indeed, our most urgent political worries about law and its claims flow from just this capacity to regulate our most vital interests, and law’s wide reach must figure in any argument about its legitimacy. (A distinct argument, developed most fully by Raz (1994) and Gardner (2012a), is that law not only occupies itself with moral matters but makes moral claims over us. For criticism see Kramer 1999: 83–9; Duarte d’Almeida and Edwards 2014.)

(2) Necessarily, law is justice-apt.

In view of the normative function of law in creating and enforcing obligations and rights, it always makes sense to ask whether law is just, and where it is found deficient to demand reform. Legal systems are therefore the kind of thing that is apt for appraisal as just or unjust. This is a significant feature of law. Not all human practices are justice-apt. It makes no sense to ask whether a certain fugue is just or to demand that it become so. The musical standards of fugal excellence are pre-eminently internal—a good fugue is a good example of its genre; it should be melodic, interesting, inventive etc.—and the further we get from these internal standards of excellence the more diverse evaluative judgments about it become. While some formalists flirt with similar ideas about law, this seems inconsistent with law’s place amongst human practices. Even if law has internal standards of merit—virtues uniquely its own that inhere in its law-like character—these cannot preclude or displace its assessment on independent criteria of justice. A fugue may be at its best when it has all the virtues of fugacity; but law is not best when it excels in legality; law must also be just. A society may therefore suffer not only from too little of the rule of law, but also from too much of it. This does not presuppose that justice is the only, or even the first, virtue of a legal system. It means that our concern for its justice as one of its virtues cannot be side lined by any claim of the sort that law’s purpose is to be law, to its most excellent degree. Law stands continuously exposed to demands for justification, and that too shapes its nature and role in our lives and culture.

(3) Necessarily, law is morally risky.

It is a curious fact that almost all theories that insist on the essentially moral character of law take law’s character to be essentially good. The gravamen of Fuller’s philosophy is that law is essentially a moral enterprise, made possible only by a robust adherence to its own inner morality. The thought that the law might have an inner immorality never occurred to him. But, as Hart recognized, where there is “a union of primary and secondary rules”—that is to say, wherever there is law—moral risks emerge as a matter of necessity. There are not only newly efficient forms of oppression, unavailable in communities with more diffuse forms of social organization, there are also new vices: the possible alienation of community and value, the loss of transparency, the rise of a new hierarchy, and the possibility that some who should resist injustice may be bought off by the goods that legal order brings. Although law has its virtues, it also necessarily risks certain vices, and this marks a connection between law and morality of a reverse kind.

These three theses establish connections between law and morality that are both necessary and highly significant. Each of them is consistent with the positivist thesis that the existence and content of law depends on social facts, not on the law’s merits. Each of them contributes to an understanding of the nature of law. The once-popular idea that legal positivism insists on the separability of law and morality is therefore significantly mistaken.

The preceding theses together establish that law is not value-neutral. Although some lawyers regard this idea as a revelation (and others as provocation) it is in fact banal. The thought that law could be value neutral does not even rise to falsity—it is incoherent. Law is a normative system, promoting certain values and repressing others. Law is not neutral between victim and murderer or between owner and thief. When people complain of the law’s lack of neutrality, they are in fact voicing very different aspirations, such as the demand that it be fair, just, impartial, and so forth. A condition of law’s achieving any of these ideals is that it is not neutral in either its aims or its effects.

Positivism is however sometimes more credibly associated with the idea that legal philosophy is or should be value-neutral. Kelsen, for example, says, “the function of the science of law is not the evaluation of its subject, but its value-free description” (1960 [1967: 68]) and Hart at one point described his work as “descriptive sociology” (1961 [2012: v]). But a description of what? “Law” is an anthropocentric subject, dependent not merely on our sensory embodiment but also, as its necessary connections to morality show, on our moral sense and capacities. Legal kinds such as courts, decisions, and rules will not appear in a purely physical description of the universe and may not even appear in every social description. (This may limit the prospects for a “naturalized” jurisprudence; though for a defense of the contrary view, see Leiter 1997). Legal positivism, to be sure, is not an “evaluation of its subject”, i.e., an evaluation of the law . And to say that the existence of law depends on social facts does not commit one to thinking that it is a good thing that this is so (nor does it preclude it: see MacCormick 1985 and Campbell 1996). But it does not follow that legal philosophy therefore offers a “value-free description” of its subject. There is a sense, of course, in which every description is value-laden. It selects and systematizes only a subset of the infinite number of facts about its subject. To describe law as resting on customary social rules is to omit many other truths about it including, for example, truths about its connection to the demand for paper or silk. What forms the warrant for our prioritizing the former over the latter? Finnis (1980 [2011: 3–19]) thinks that the only possibility here has to do with the moral reasons we might have for wanting law (that we answer “what?” by answering “why?”) and that the failure of methodological positivism, the failure to achieve a value-free description of the subject, results in the failure of legal positivism. But the question of social significance is not exhausted by our moral register, and especially not only by its positive valence (on which see Dickson 2001). Others point to the notion of conceptual or metaphysical truth as setting the bounds of the question that positivism seeks to answer (for discussion see Raz 2004b). But however these difficult issues are to be resolved, we should not expect legal positivism itself to contribute much. A thesis about the nature of law is not at the same time a thesis about how to understand the nature of law.

It may seem, however, that legal positivism at least requires a stand on the so-called “fact-value” problem. There is no doubt that certain positivists, especially Kelsen, believe this to be so. In reality, positivism may cohabit with a range of views here—value statements may be entailed by factual statements; values may supervene on facts; values may be kinds of fact. Legal positivism requires only that it be in virtue of its facticity rather than its meritoriousness that something is law, and that we can describe that facticity without assessing its merits.

Evaluative argument is, of course, central to the philosophy of law more generally. No legal philosopher can be only a legal positivist. A complete understanding of law requires also an account of what kinds of things could possibly count as the merits of law (must law be efficient or elegant as well as just?); of what role law should play in adjudication (should valid law always be applied?); of what claim law has on our obedience (is there a duty to obey?); and also the more practical questions of what laws we should have and whether we should have law at all. Legal positivism does not aspire to answer these questions (although cf. Murphy 2014: 88–108 for the argument that the theory has important first-order implications for legal practice). Nonetheless, positivism’s claim that the existence and content of law depends only on social facts does give them shape.

Austin, John, 1832 [1995], Austin: The Province of Jurisprudence Determined , Wilfrid E. Rumble (ed.), Cambridge: Cambridge University Press. doi:10.1017/CBO9780511521546
Bentham, Jeremy, 1782 [1970], Of Laws in General , unpublished manuscript. Printed H.L.A. Hart (ed.), London: Athlone Press, 1970.
Campbell, Tom, 1996, The Legal Theory of Ethical Positivism , Brookfield, VT: Dartmouth Pub. Co.
Coleman, Jules L., 1982, “Negative and Positive Positivism”, The Journal of Legal Studies , 11(1): 139–164. doi:10.1086/467696
–––, 2001, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780199264124.001.0001
Dickson, Julie, 2001, Evaluation and Legal Theory , Oxford: Hart Publishing.
Duarte d’Almeida, Luís and James Edwards, 2014, “Some Claims About Law’s Claims”, Law and Philosophy , 33(6): 725–746. doi:10.1007/s10982-013-9202-5
Dworkin, Ronald, 1978, Taking Rights Seriously , Cambridge MA: Harvard University Press.
–––, 1986, Law’s Empire , Cambridge MA: Harvard University Press.
–––, 2002 [2006], “Thirty Years on: Review of The Practice of Principle: In Defense of a Pragmatist Approach to Legal Theory by Jules Coleman”, Harvard Law Review , 115(6): 1655–1687; reprinted in his Justice in Robes , Cambridge, MA: Harvard University Press, 2006. doi:10.2307/1342563
–––, 2011, Justice for Hedgehogs , Cambridge MA: Harvard University Press.
Finnis, John, 1980 [2011], Natural Law and Natural Rights , Oxford: Oxford University Press. Second edition, 2011.
–––, 1996, “The Truth in Legal Positivism”, in George 1996: 195–214.
Füßer, Klaus, 1996, “Farewell to ‘Legal Positivism’: The Separation Thesis Unravelling”, in George 1996: 119–162.
Fuller, Lon L., 1958, “Positivism and Fidelity to Law: a Reply to Professor Hart”, Harvard Law Review , 71(4): 630–672. doi:10.2307/1338226
–––, 1964, The Morality of Law , revised edition, New Haven, CT: Yale University Press.
Gardner, John, 2001, “Legal Positivism: 5½ Myths”, The American Journal of Jurisprudence , 46(1): 199–227, doi:10.1093/ajj/46.1.199; reprinted in Gardner 2012b, 19–53.
–––, 2012a, “How Law Claims, What Law Claims”, in Institutionalized Reason: The Jurisprudence of Robert Alexy , Matthias Klatt (ed.), Oxford: Oxford University Press; reprinted in Gardner 2012b, 125–148.
–––, 2012b, Law as a Leap of Faith: Essays on Law in General , Oxford: Oxford University Press.
George, Robert P. (ed.), 1996, The Autonomy of Law: Essays on Legal Positivism , Oxford: Clarendon Press. doi:10.1093/acprof:oso/9780198267904.001.0001
Green, Leslie, 1999, “Positivism and Conventionalism”, Canadian Journal of Law & Jurisprudence , 12(1): 35–52. doi:10.1017/S0841820900002137
–––, 2008, “Positivism and the Inseparability of Law and Morals”, New York University Law Review , 83(4): 1035–1058.
Greenberg, Mark, 2004, “How Facts Make Law”, Legal Theory , 10(3): 157–198. doi:10.1017/S1352325204040212
–––, 2014, “The Moral Impact Theory of Law”, Yale Law Journal , 123(5): 1288–1342.
Hacker, P.M.S., 1973, “Sanction Theories of Duty”, in Oxford Essays in Jurisprudence: Second Series , A.W.B. Simpson (ed.), Oxford: Clarendon Press.
Harris, J.W., 1979, Law and Legal Science. An Inquiry into the Concepts: “Legal Rule” and “Legal System” , Oxford: Clarendon Press.
Hart, H. L. A., 1955, “Are There Any Natural Rights?”, The Philosophical Review , 64(2): 175–191. doi:10.2307/2182586
–––, 1958, “Positivism and the Separation of Law and Morals”, Harvard Law Review , 71(4): 593–629; reprinted in his Essays in Jurisprudence and Philosophy , Oxford: Clarendon Press, 1983. doi:10.2307/1338225
–––, 1961 [2012], The Concept of Law , Oxford: Clarendon Press. Third edition, 2012.
Himma, Kenneth Einar, 2019, Morality and the Nature of Law , Oxford: Oxford University Press. doi:10.1093/oso/9780198723479.001.0001
Kelsen, Hans, 1928 [1973], “The Idea of Natural Law”, Zeitschrift fü offentliches Recht , 7: 221–250; reprinted in his Essays in Legal and Moral Philosophy , Ota Weinberger (ed.), Peter Heath(trans.), Dordrecht: D. Reidel, 1973, 27–60. doi:10.1007/978-94-010-2653-6_2
–––, 1945 [1961], General Theory of Law and State , Anders Wedberg (trans.), Cambridge, MA: Harvard University Press; reprinted, New York: Russell and Russell, 1961.
–––, 1960 [1967], Reine Rechtslehre , Vienna: F. Deuticke; translated as Pure Theory of Law , Max Knight (trans.), Berkeley, CA: University of California Press.
Kramer, Matthew H., 1999, In Defense of Legal Positivism: Law Without Trimmings , Oxford: Clarendon Press. doi:10.1093/acprof:oso/9780199264834.001.0001
–––, 2004, Where Law and Morality Meet , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780199546138.001.0001
Ladenson, Robert, 1980, “In Defense of a Hobbesian Conception of Law”, Philosophy & Public Affairs , 9(2): 134–159.
Leiter, Brian, 1997 [2007], “Rethinking Legal Realism: Toward a Naturalized Jurisprudence”, Texas Law Review , 76: 267–315; reprinted in his Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy , Oxford: Oxford University Press, 2007.
–––, 2009, “Explaining Theoretical Disagreement”, University of Chicago Law Review , 76: 1215–1250.
Lyons, David, 1982, “Moral Aspects of Legal Theory”, Midwest Studies in Philosophy , 7: 223–254. doi:10.1111/j.1475-4975.1982.tb00093.x
–––, 1984, Ethics and the Rule of Law , Cambridge: Cambridge University Press. doi:10.1017/CBO9780511608933
MacCormick, Neil, 1985, “A Moralistic Case for A-Moralistic Law”, Valparaiso University Law Review , 20(1): 1–41.
Marmor, Andrei, 1998, “Legal Conventionalism”, Legal Theory , 4(4): 509–531. doi:10.1017/S1352325200001129
Morison, W. L., 1982, John Austin , Stanford, CA: Stanford University Press.
Murphy, Liam, 2014, What Makes Law: An Introduction to the Philosophy of Law , Cambridge: Cambridge University Press. doi:10.1017/CBO9780511808425
Pashukanis, Evgeny, 1924, Obshchaȋa teoriȋa prava i marksizm , translated, 1928, into German as Allgemeine Rechtslehre und Marxismus , Edith Hajós (trans.), Vienna: Verlag für Literatur und Politik; translated from the German as Law and Marxism: A General Theory , Barbara Einhorn (trans.), London: Pluto Press, 1983.
Perry, Stephen, 1989, “Second Order Reasons, Uncertainty, and Legal Theory”, Southern California Law Review , 62: 913–994.
Raz, Joseph, 1975 [1990], Practical Reason and Norms , London: Hutchinson. Second edition, Oxford: Oxford University Press, 1990.
–––,1979 [2009], The Authority of Law , Oxford: Clarendon Press; second edition, 2009.
–––, 1994, Ethics in the Public Domain: Essays in the Morality of Law and Politics , Oxford: Clarendon Press.
–––, 2004a [2009], “Incorporation by Law”, Legal Theory , 10(1): 1–17; reprinted in Raz 2009: 182–202. doi:10.1017/S135232520400014X
–––, 2004b [2009], “Can There Be a Theory of Law?”, in The Blackwell Guide to the Philosophy of Law and Legal Theory , Martin P. Golding and William A. Edmundson (eds.), Oxford, UK: Blackwell Publishing Ltd, 324–342; reprinted in Raz 2009: 17–46. doi:10.1002/9780470690116.ch23
–––, 2009, Between Authority and Interpretation: On the Theory of Law and Practical Reason , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780199562688.001.0001
Schauer, Fred, 1996, “Positivism as Pariah”, in George 1996: 31–55.
Shapiro, Scott J., 1998, “On Hart’s Way Out”, Legal Theory , 4(4): 469–507. doi:10.1017/S1352325200001117
–––, 2011, Legality , Cambridge MA: Harvard University Press.
Soper, E. Philip, 1977, “Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute”, Michigan Law Review , 75(3): 473–519. doi:10.2307/1287980
Waldron, Jeremy, 1999, “All We Like Sheep”, Canadian Journal of Law & Jurisprudence , 12(1): 169–188. doi:10.1017/S0841820900002198
Waluchow, Wilfrid J., 1994, Inclusive Legal Positivism , Oxford: Clarendon Press.

How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

The Bentham Project , University College London.

Accessibility

Support SEP

Mirror sites.

View this site from another server:

Info about mirror sites

Library of Congress Catalog Data: ISSN 1095-5054

The Quest for the Description of the Law pp 27–32 Cite as

Joseph Raz – the Social Thesis and the Sources Thesis

710 Accesses

In chapter 4 a part of the theory of law presented by Joseph Raz is examined. The part examined is the demand that the content and existence of law should be described as questions of facts of human behaviour. (He calls this demand the ‘social thesis’ or the ‘sources thesis’.) It is shown how his arguments for this demand are inadequate.

This is a preview of subscription content, log in via an institution .

Buying options

Available as PDF
Read on any device
Instant download
Own it forever
Compact, lightweight edition
Dispatched in 3 to 5 business days
Free shipping worldwide - see info
Durable hardcover edition

Tax calculation will be finalised at checkout

Purchases are for personal use only

Unable to display preview. Download preview PDF.

Raz, J. (1979). The authority of law, essays on law and morality . Oxford: Clarendon Press.

Google Scholar

Waluchow, W. (1994). Inclusive legal positivism . Oxford: Clarendon Press.

Download references

Rights and permissions

Reprints and permissions

Copyright information

About this chapter

Cite this chapter.

(2009). Joseph Raz – the Social Thesis and the Sources Thesis. In: The Quest for the Description of the Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-70502-4_4

Download citation

DOI : https://doi.org/10.1007/978-3-540-70502-4_4

Publisher Name : Springer, Berlin, Heidelberg

Print ISBN : 978-3-540-70501-7

Online ISBN : 978-3-540-70502-4

eBook Packages : Humanities, Social Sciences and Law Philosophy and Religion (R0)

Share this chapter

Anyone you share the following link with will be able to read this content:

Sorry, a shareable link is not currently available for this article.

Provided by the Springer Nature SharedIt content-sharing initiative

Publish with us

Policies and ethics

Find a journal
Track your research

IMAGES

Legal Basis for Research
What Are The Different Types of Thesis Statements
(PDF) LEGAL RESEARCH: AN OVERVIEW OF A RESEARCH PROPOSAL
😝 Legal research paper outline example. Legal Concepts, Research Paper
Writing a legal thesis paragraph
Legal Research Methodology

VIDEO

THESIS/DISSERTATION: TIP 2
What Is a Thesis?
THESIS/DISSERTATION: TIP 1
THESIS/ DISSERTATION: GAP IN KNOWLEDGE
JURISPRUDENCE FOR LLB STUDENTS- Ronald Dworkin’s Contribution to Legal Theory
How to Write a Law Dissertation?

COMMENTS

Chapter 3 Review of Related Literature and Studies
The word related means legal bases, literature and studies that have a direct bearing or relation to the present study. In a research paper, thesis, dissertation and research project, Related Literature Review is divided into three parts: these are (1) Related Legal Bases; (2) related Literature; and (3) Related Studies. Related Legal Basis
Library Guides: Writing Academic Papers for Law School: The Thesis
The Thesis. The thesis of your substantial writing paper must meet several requirements: It must be original. It must take a position, advance an argument, or propose a solution. It must be concrete, identifiable, and manageable. It must be novel, useful, nonobvious, and sound. Your approach to the topic may be descriptive, prescriptive, or both.
Writing a Law School Paper Prof. Chris Wold (Last revised: Oct. 2019
Writing a Law School Paper I. Choosing a Thesis A. What Is a Thesis and Where Do You Find One A thesis has been defined as "an assertion supportable by arguments and evidence."1 In other words, the thesis is your "take" on an issue. A thesis should explain the issue and what you hope to write about the issue.
(6) Methods and approaches to research legal questions in your thesis
Legal gender studies, in conjunction with the success of the feminist movement in general, has given rise to specific bodies of law that deal with gender discrimination (such as anti ...
PDF Basics About Thesis Statements
A thesis statement is an original, supportable hypothesis or assertion about a topic. The thesis targets a specific point or aspect of the law, articulates a problem, and ideally attempts to resolve it. In short, your thesis statement embodies your argument. Your thesis statement develops from the topic you select.
Legal Dissertation: Research and Writing Guide
This guide contains resources to help students researching and writing a legal dissertation or other upper-level writing project. Some of the resources in this guide are directed at researching and writing in general, not specifically on legal topics, but the strategies and tips can still be applied. The Law Library maintains a number of other ...
Legal Basis for Research
Legal Basis for Research Primary Use of Data. In advance of any data collection, Researchers must inform participants of the legal basis under GDPR. Personal Data. We advise researchers to rely on Article 6 (1)(e) GDPR quoted in full below: Processing is .
Writing a Thesis and Making an Argument
New evidence often requires you to change your thesis. • Gives your paper a unified structure and point. Your reader's blueprint for reading: • Serves as a "map" to follow through your paper. • Keeps the reader focused on your argument. • Signals to the reader your main points. • Engages the reader in your argument.
The Nature of Law
The social conventions on the basis of which we identify the law may, but need not, contain reference to moral content as a condition of legality (see, for example, Waluchow 1994). ... It is a reductionist thesis about law's normative character, maintaining that the normativity of law consists in the subjects' ability to predict the chances ...
Legal Basis
The 'legal basis' is the foundation for data processing under the General Data Protection Regulation (GDPR). This means that when an organisation wants to process personal data, there is a need to identify specific legal grounds for the processing. ‌ ‌In other words: on what grounds is the organisation processing your data?
(PDF) The Legal Critical Literature Review
Abstract. This paper explains the legal critical literature review in the critical context of the logic of scholarship. The paper asks what makes a critical literature review effective in research ...
The Writing Process
State the legal problem/issue; Describe why it is important and how your paper contributes to the discussion; Provide a road map of your paper; and. State your conclusion. Being Objective & Subjective. After your introduction, you should discuss background information on the issue you chose to write about.
Theses and dissertations
There are many online resources that can help you learn more about thesis preparation and submission. The Graduate School has written a series of web resources called My Thesis. Learn about: Thesis preparation (formatting, word limits, templates) Thesis submission (submission requirements, iThenticate, eSpace submission) Thesis examination
Legal Basis Definition
Examples of Legal Basis in a sentence. The legal basis and term of data controlling are the Legal Basis and Term indicated in Section 2.. Purpose and Legal Basis for the Use of Data: Your personal data is processed for pre-contractual and contractual purposes on the basis of Art.. It shall include a Statement of the Factual and Legal Basis for the decision, addressing the issues raised in the ...
What Is Law and What Counts as Law? The Separation Thesis in Context
Marmor considers the separation thesis, which he understands as saying that whether a given norm is legally valid depends on its sources, not its merits; and this means that he is concerned with the separation thesis conceived as a thesis about legal status, not as a thesis about the content of legal statements.
What Is a Thesis?
A thesis is a type of research paper based on your original research. It is usually submitted as the final step of a master's program or a capstone to a bachelor's degree. Writing a thesis can be a daunting experience. Other than a dissertation, it is one of the longest pieces of writing students typically complete.
Tips to write a great master thesis (in law)
First, very important: * never * miss deadlines. Second, pay the greatest attention to your footnotes and language. In fact, in all likelihood, the very first thing that your professor will check out when opening your master's thesis are footnotes and language. This means that your footnotes must be absolutely perfect.
(Pdf) Legal Research Methodology: an Overview
Abstract:-. Research methodology is the process for direct approach through mixed types of research. techniques. The research approach supports the researcher to come across the research result ...
(PDF) Theoretical and Normative Frameworks for Legal ...
legal met hodology: t he study of law a s an ex isting pr actice revea ls th at it shares the descr iptive and e xpla natory foc us of soci al science; its te ndency to ma ke
Simple Tips on How to Search Legal Basis and Theories for You ...
guyz this is another vlog, this is all about tips on how to get or search legal basis and related theories that can be used for your study .... most especial...
Legal Positivism
Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790-1859) formulated it thus: ... and on that basis Canadian law and English law should be parts of a single legal system, rooted in one basic norm: "The (first) U.K. constitution is to be ...
PDF Joseph Raz
using their legal skills in applying the law." (Raz 1979, p. 49). It can also be noted that the predictability that is held to be desirable in his second argument must be the predictability of legal decisions. Predictability regarding some basis for legal decisions, which in an obscure way determines the decisions, would not interest us
Legal Basis Sample Clauses: 456 Samples
Legal Basis. Purpose: Tobacco Master Settlement Agreement Fund Group: Amounts transferred under ORC 183.02(D)(1) from the Tobacco Master Settlement Agreement Fund and all investment earnings of the fund to Ohio's Public Health Priorities Trust Fund (Fund L87) ORC 183.18; Section 203.50 of Sub. S.B. 321 of the 126th G.A. These funds are to be used for purchasing test kits, conducting tests for ...