The Inner Logic of Exclusivism (and Inclusivism): Shapiro's Shadowing

Published date01 September 2019
AuthorMark Mcbride
DOIhttp://doi.org/10.1111/raju.12252
Date01 September 2019
© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.
Ratio Juris. Vol. 32 No. 3 September 2019 (363–389)
The Inner Logic of Exclusivism
(and Inclusivism): Shapiro’s Shadowing
MARK MCBRIDE
Abstract. Scott Shapiro, a promi nent defender of exclusive legal positivism—exclusivism —has
intrig uingly (re)introduced a logical principle, the endorsement and rejection of which he (I t ake
it) supposes can helpfully di stinguish exc lusivism from its contrary, inclusive legal positiv-
ism—inclusivism. It is an intr iguing thought th at principles pitched at such a hig h level of
abstraction as th is could distinguish be tween the two versions of positivism. My aim w ill be
to test whether thi s principle—and associate d principles—can do such di stinguishing work.
1. Introduction
1.1. Scott Shapiro (1998, 2009, 2011), a prominent defender of exclusive legal positiv-
ism—exclusivism—has i ntriguingly (re)introduced (Shapiro 1998, 2009) a logical prin-
ciple, the endorsement and rejection of which he (I take it) supposes can helpfully
distingui sh exclusivism from its contrary, inclusive legal positivism—inclusivism.1 It
is an intrigu ing thought that principles pitched at such a high level of abstraction as
this could disti nguish between the two versions of positivi sm. My aim will be to test
whether this princ iple—and associated pri nciples—can do such dist inguishi ng
work. If they can, a new avenue for progress in this debate opens up: We can test for
the truth of exclusivism/inclusivism by testing whet her the principles to which they
are committed are cor rect. While the principles are pitched at a high level of abstrac-
tion, testing for whether they ca n do such distinguishing work, and, if they can, for
whether they are correct or not, wil l (and should) proceed by way of consideration of
specific c ases.
The plan (more specifically): First, I introduce two closely-related puzzle case s—
Shapiro’s (2009) and Joseph Raz’s (1994)—which, inter alia, serve as test cases for the
aforementioned logical principle. Shapiro considers h is case to ground a possible
objection to exclusivism. Second, I ma ke some essential preliminar y definitional re-
marks which have metaphysical import. Thi rd, I survey two rich papers of Raz’s
(1994), which serve as an indispen sable backdrop to my conclusions: The survey
raises independently interest ing principles, and indicates a (possible) Razian
1 Cf. Shapiro’s (2011, 269–71) core thesis of positivism, namely, the “Ultimacy Thesis: Le gal facts
are ultimately deter mined by social facts alone.”
Mark Mcbride364
Ratio Juris, Vol. 32, No. 3© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.
response to Shapiro’s principle, and puzzle case. Fourth, buildi ng on Shapiro (1998,
2009), I precisify some logical principles which ca n be taken to constitute part of the
inner logic (taken to comprise its core theses plus concomitant logical commitme nts) of
exclusiv ism (and in clusivi sm).2 Finally, I conclude by returning to Shapiro’s puzzle
case from Section 2, and applying a ll the foregoing to the interest ing objection to
exclusivism which Shapiro (2009) considers to be grounded in th is puzzle case.
To explain this ordering: The puzz le cases (Section 2) vividly set up the paper; the
definitional work (Section 3) is requir ed in order to correctly interpret t he (logical)
principles (Sections 4 and 5); and such interpre tation is required in order to see how
to properly respond to the objection (Section 6). At the end of Section 5 —or, even
more regularly—the reader is invited to che ck the Appendix, which collects t heses
comprising (part of) the in ner logics of exclusivism and inclusivism.
1.2. My conclusion will be that Shapiro has misu nderstood the inner logic—
perhaps, better: overlooked a possible and attractive inner logic— of exclusivism.
And, moreover, I conclude that that misunderstanding leads hi m to respond to the
objection to exclusivism grou nded in his puzzle cas e in an unmotivated man ner.
The hope is that engaging wit h Shapiro on exclusivism can shed some new light on the
inclusi vism/exclusivi sm debate in general—c an shed some new light, that is, on the
inner logic of exclusivism and inclusivism. Wh ile the core these s of these versions of
(legal) positivism are fairly well understood, it’s my belief that their exte nded inner
logics are not so well understood. My chief focus in what follows will be on t he inner
logic of exclusivism, but, as we can only fully understa nd this debate if we descry
the inner logic of its contrar y, inclusivism, I will also attempt to elucidate the in ner
logic of the latter.
For many legal philosophers, this debate has reac hed an unhappy stalemate.
(Enthusiasts of the debate, even if they recogni se a stalemate, might maintain that a
debate such as this, over the bounds of the law—t he relationship between law and
morality—needs little just ification.) It’s my belief that engaging with Shapiro’s
intriguing log ical principle, and applying the results of that engagement to Shapiro’s
interesting objec tion to exclusivism, can reinvigorate the debate. In a way to be
explained fully short ly, Shapiro’s logical principle (and my ensuing precisification
thereof, and introduction of other germ ane such principles) appositely introduces—
makes explicit—a dynami c aspect to a debate which has all too of ten been static. One
way of thinking of t he inclusive/exclusive debate is as a debate over the correct pos-
itivist account of moral principles alighted on by judges in adju dication. Given that
adjudication centrally involves legal reasoni ng—a dynamic proces s—we should only
expect to get to the heart of t his debate by considering principles governing suc h
dynamic reasoni ng. And the principles to come do just that.3
2 In a separate paper (McBride 2017), I extensively survey these r ich papers of Raz’s, and
attempt to descry fu rther formalised logical pr inciples which, in conjunction with S hapiro’s,
may be said to constitute t he entire inner logic of exclusivis m (and inclusivism).
3 There has been a wealt h of interesting, t hough bracketable, fairly recent literat ure on this
debate (and, of course, the debate has its origi ns in the seminal work of Dworkin, Hart, a nd
Raz). And for good overviews of exclusivism a nd inclusivism respectively, see Himma 2002
and Marmor 2002.

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