THROWING LIGHT ON THE ROLE OF MORAL PRINCIPLES IN THE LAW:

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Inclusive Legal Positivism, as understood throughout this article, consists in the following thesis: It can be the case, though it need not be the case, that a norm’s consistency with some or all of the requirements of morality is a precondition for the norm’s status as a law in this or that jurisdiction. While such a precondition for legal validity is not inherent in the concept of law, it can be imposed as a threshold test under the Rule of Recognition in any particular legal regime. That test, which can be applied by the officials in such a regime to all of the legal norms therein or to only some subset of those norms, is one of the criteria that the officials use for ascertaining the law. Insofar as a criterion of that sort does prevail in any particular legal system, then, some degree of moral worthiness is a necessary condition for the legally authoritative force of each norm that is validated thereunder. Inclusive Legal Positivism, which readily accepts the possibility of such a state of affairs, is inclusive because it allows that moral precepts can figure among the criteria that guide officials’ ascertainment of the law. Inclusivist theorists reject the view that every criterion of law-ascertainment in every possible legal system is focused on nonnormative matters of provenance. At the same time, the Inclusivists are positivists because they also reject the view that every possible legal system includes moral tests among its law-ascertaining criteria. An Inclusive Legal Positivist insists that such tests are contingent features, rather than essential features, of the systems of law wherein they are applied.