Spaak argues that legal positivists need to consider the social thesis in light of an important distinction between two levels of legal thinking, namely, the level of the sources of law (existence) and the level of the interpretation and application of law (content), and that they have good reason to restrict the scope of the social thesis to the level of the sources of law. He argues that by restricting the scope of the social thesis in this way, inclusive legal positivists can avoid having to assume that moral judgements can be true in a non-relative way, that exclusive legal positivists can avoid having to say that judges are creating new law instead of applying pre-existing law, if and insofar as they invoke normative considerations in their interpretation and application of the law, and that both inclusive and exclusive legal positivists can avoid Dworkin’s theoretical disagreement objection.

Wow, that’s a massive call, right? You are going to read an awful lot of stuff in the next few years. How can we possibly suggest this is going to be the most important of all? For the moment, you will just have to trust such a bold claim. But what the authors of this text can tell you is that, together, we have marked many thousands of university assignments. We have seen the good, the bad and the very, very ugly. And from that experience we can guarantee that students who understand the material contained in this chapter invariably do better than students who do not.