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Published in Fordham Law Review, vol. 75, no. 3 (December 2006).


Imagine two citizens, one of whom obeys the law only in order to avoid being sanctioned for noncompliance, the other of whom looks to the law for guidance, and regards legal directives as legitimate reasons for action in themselves. These two hypothetical citizens represent Oliver Wendell Holmes' metaphorical bad man and H.L.A. Hart's puzzled man, respectively. Both citizens take the law into account in their practical reasoning, but they are concerned with very different kinds of reasons created by law. Hart argues that the bad citizen's point of view is inadequate to capture the law's distinctive normativity. In response, some of his critics, including most prominently Stephen Perry, have pointed out that Hart purports to give a morally neutral account of law so he cannot smuggle normativity into his theory of law under the guise of the puzzled citizens point of view. The bad man is engaged in practical reasoning, but responds to legal norms in a distinctive way, by being concerned only with sanctions. Arguably, however, citizens are obligated to consider the law from the internal point of view to the extent they are concerned with the lawfulness of their activities, as opposed to simply being interested in getting away with something. This is a kind of ethical expressionist claim, that a citizen who represents that she is interested in the lawfulness of action is thereby committed to a particular stance toward law and legality.

If one does not accept this conceptual argument that one must relate to the law as a puzzled citizen and treat it as a reason for action as such, there still may be frankly normative reasons (not smuggled in through the back door, but argued explicitly) for taking the puzzled citizen's internal perspective on the law. These reasons derive from the shared interest of all citizens in establishing a stable framework for coordinated activity, notwithstanding deep and persistent first-order moral disagreement in a pluralistic society. This interest supports the law's claim to legitimate authority, which in turn creates norms that must be regarded as obligations as such, not merely prices that may be paid in order to engage in unlawful conduct. This normative argument supplies the ought in the expressionist argument above. The expressionist argument is that if one wishes to take advantage of a particular justificatory discourse (law and lawfulness) then one is committed to the internal point of view. Further, one ought to care about law and lawfulness to the extent one has an interest in living in an ordered, stable society that is characterized by disagreement about comprehensive doctrines of the good.

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Legal philosophy