*
Visiting Professor of Law, George Washington Law School and Georgetown
University Law Center; Professor of Law, Quinnipiac College School of Law. I am grateful to
Matthew D. Adler, David Orgon Coolidge, Neil Duxbury, John M. Finnis, Robert P. George, Steven
P. Goldberg, Philip A. Hamburger, Matthew H. Kramer, Nancy Levit, David J. Luban, Linda R.
Meyer, Thomas H. Morawetz, Scott Shapiro, Malcolm B. E. Smith, Adam Tomkins, Robert W. Tuttle,
and Kenneth I. Winston for their comments and suggestions.
1
Plato, Laws, Book IV, 715b, in Plato: The Collected Dialogues 1306 (E. Hamilton
& H. Cairns, eds., 1961).
2
Aristotle, Nicomachean Ethics, Book V, 7:1134b18-1135a5, in The Complete
Works of Aristotle, vol. 2, 1790-91 (J. Barnes, ed., 1984). One can also find references to natural
law-like views in ancient Greek drama. See, e.g., Sophocles, Antigone, in The Oedipus Plays of
Sophocles 210 (P. Roche, trans., 1958).
3
Cicero, Republic III.xxii.33 and Laws II.v.11-12, in De Re Publica; De Legibus
211, 383, 385 (C.W. Keyes, trans., 1928).
1
Handbook of Jurisprudence and Legal Philosophy (forthcoming, Jules L. Coleman &
Scott Shapiro eds., Oxford: Oxford University Press, 2000)
Natural Law Theory: The Modern Tradition
Brian Bix*
Natural Law theory is a mode of thinking systematically about the connections between the
cosmic order, morality, and law, which, in one form or another, has been around for thousands of years.
The focus of this essay is on the more recent works on natural law theory. However, it is difficult to
understand the origin and direction of the modern works within the tradition without having a strong
sense of the tradition's history.
One can find important aspects of the natural law approach in Plato (c. 429-347 B.C.),1
Aristotle (384-322 B.C.),2
and Cicero (106-43 B.C.)3
; it is given systematic form by Thomas Aquinas
4
Thomas Aquinas, Summa Theologiae, I.II [First Part of the Second Part], Questions
90-97, in Thomas Aquinas, The Treatise on Law(R.J. Henle, ed., 1993).
5
It is not coincidental that the American Declaration of Independence (1776) claims
authority from "the Laws of Nature" and refers to the "unalienable rights" of "Life, Liberty, and the
pursuit of Happiness." Similarly, the French Declaration of the Rights of Man (1789) declares "the
natural, inalienable, and sacred rights of man." (The idiosyncratic equation of natural law with pursuing
happiness in the American document may derive from the work of Jean Jacques Burlamaqui (1694-
1748). See Jean Jacques Burlamaqui, The Principles of Natural and Political Law(Thomas
Nugent, trans., 5th
ed., 1807), in particular Part I,
Chapter V.)
6
Jerome Schneewind calls this last theme "The Grotian Problematic," J. B.
Schneewind, The Invention of Autonomy 70-73 (1998), and he finds it not only in Grotius, but in
nearly every significant natural law theorist after Grotius. It also clearly foreshadows some ideas of
John Rawls. See, e.g., John Rawls, The Idea of an Overlapping Consensus, in Collected Papers
421-48 (1999).
2
(c. 1225-1274).4
In the medieval period and through the Renaissance, with the work of writers like
Francisco Suárez (1548-1617), Hugo Grotius (1583-1645), Samuel Pufendorf (1632-1694), John
Locke (1632-1704), and Jean-Jacques Rousseau (1712-1778), natural law and natural rights theories
were an integral part of theological, moral, legal and political thought. Those theories were central to the
development of international law, modern liberal political theory,5
and the concept of human rights. The
role natural law has played in broader religious, moral and political debates has, perhaps unsurprisingly,
varied considerably. Sometimes it has been identified with a particular established religion, or more
generally with the status quo, while at other times it has been used as a support by those advocating
radical change. Similarly, at times those writing in the natural law tradition seem most concerned with the
individual-based question, how is one to live a good ("moral," "virtuous") life; at other times, the concern
has been broader ­ social or international: what norms can we find under which we can all get along,
given our different values and ideas about the good.6
7
Natural law theorists are often concerned with moral matters one step removed, that is,
matters of "meta-theory": e.g., how does one go about determining what morality requires?; and, what
is it in the world that makes a statement about morality true or false? Much of Aquinas's Summa
Theologiae and John Finnis's Natural Law and Natural Rights (1980) are devoted to such
questions.
8
In an earlier article on natural law theory, I distinguished the moral/political theorists in
the tradition from the legal/social theorists under the titles of "traditional" versus "modern" natural law
theory (labels I now find more distracting than helpful). See Brian Bix, Natural Law Theory, in A
Companion to Philosophy of Law and Legal Theory 223-40 (Dennis Patterson, ed., 1996). A
similar distinction can be found in Philip Soper, Some Natural Confusions About Natural Law, 90
Mich. L. Rev. 2393, 2394-2403 (1992).
3
Some of the modern legal theorists who identify themselves with the natural law tradition seem to
have objectives and approaches distinctly different from those classically associated with natural law.
Most of the classical theorists were basically moral and political theorists, asking: how does one act
morally as a citizen within a state, or as a state official? What are the limits of legitimate (that is, moral)
governmental action?7
By contrast, some (but far from all) of the modern theorists working within the
tradition8
are social theorists or legal theorists, narrowly understood. Their primary dispute is with other
approaches to explaining or understanding society and law: the best and most prominent example being
the legal positivists (about which, more later). In fact, much of modern natural law theory has developed
primarily in reaction to legal positivism. As will be discussed, one can see the two different types of
natural law ­ natural law as moral/political theory and natural law as legal/social theory ­ as connected at
a basic level: as both exemplifying a view of (civil) law not merely as governing, but also as being
governed.
I. Traditional Natural Law Theory
9
See Finnis, Natural Law and Natural Rights 23-25; Philip Soper, Legal Theory
and the Problem of Definition(book review),50 U. Chi. L. Rev. 1170, 1173-75 (1983) (discussing
Finnis's position).
10
See, e.g., Soper, Legal Theory and the Problem of Definition, 1174-75 & n. 21; see
also Russell Hittinger, Varieties of Minimalist Natural Law Theory, 34 Am. J. Juris. 133, 133-35
(1989). Under the broader definition deontological theories, for example, would not seem to be
excluded, and even Utilitarians and other consequentialists could argue that they believe that moral
truths are objective and accessible to reason. Some discussions of natural law expressly exclude
deontological theories and "aggregative conception[s] of the right and the just" from the tradition. John
Finnis, Natural Law, in Routledge Encyclopedia of Philosophy, vol. 6, pp. 685-90, at 687 (1998);
see also Robert P. George, Natural Law Ethics, in A Companion to Philosophy of Religion pp.
460-65, at p. 462-63 (Philip L. Quinn & Charles Taliaferro eds., 1997).
11
On this matter, one should also note: "Historically there is not really a tradition of
natural law, but several traditions." Russell Hittinger, Introduction, in Yves R. Simon, The Tradition
of Natural Lawxiii-xxxii, at p. xix (Vukan Kuic, ed., 1965).
4
A. Definition
What makes a theory a "natural law" theory? There are almost as many answers to the question
as there are theorists writing about natural law theory, or calling themselves "natural law theorists."
Some of the proffered definitions are quite broad. According to some commentators who identify
themselves as "natural law theorists," all that seems to be required for a theory to fit into that category is
that it views values as objective and accessible to human reason.9
Such a view might exclude very little:
almost every moral theory could qualify as a natural law theory, give or take the most hardened moral
relativism or moral skepticism or non-cognitivism.10
Of course, in the cases of John Finnis (1940- ) and
many others self-described as natural law theorists, the claim for inclusion in the category is supported
by their consciously working within a particular tradition,11
citing, discussing, and elaborating the views of
12
Cf. Robert P. George, In Defense of Natural Law1 (1999). Finnis is adamant
that he is offering a theory of natural law, and not a history of other theories that have come under that
name. Finnis, Natural Law and Natural Rights 24-25. At the same time, his text (and many of his
other works) includes pervasive references to and discussions of Augustine, Aquinas, Gabriel Vazquez,
Francisco Suárez, Francisco de Vitoria, Germain Grisez, and many others who have worked within the
tradition.
13
On such a basis, one eminent natural law theorist, Russell Hittinger can hint that John
Finnis and Germain Grisez do not fit within the fold. See Russell Hittinger, A Critique of the New
Natural Law Theory 8 (1987) (Grisez-Finnis approach does not qualify because natural law "requires
a commitment to law as in some way `natural,' and nature as in some way normative").
14
See, e.g., Lloyd L. Weinreb, Natural Law and Justice 15-42 (1987); Ronald R.
Garet, Natural Law and Creation Stories, in Religion, Morality and the Law, NOMOS XXX pp.
218-62, at 219-20 (J. Roland Pennock & John W. Chapman, eds., 1988) ("The underlying notion is
that careful observation of nature permits us to understand which regime or basic social structure is best
suited to beings such as ourselves"). This is a position found not only in some forms of Western natural
law theory, but also in some theorists within the Chinese neo-Confucian tradition. See, e.g., Tu Wei-
Ming, Neo-Confucian Thought in Action 167-68 (1976) (discussing Chu Hsi's interpretation of the
concept of ko-wu, the "investigation of things").
15
The contrast in perspectives is exemplified by the way Suárez seemed to view the moral
theologian as the likely expert for determining the laws of nature, while Pufendorf considered the inquiry
an entirely secular one in which a moral theologian would have no place. See Schneewind, The
Invention of Autonomy 131.
5
prominent predecessors.12
Many writers within or about natural law theory define the category more narrowly, by offering
more content to the word "natural."13
Even here, though, the explanations of "natural" can diverge
radically: e.g., (1) moral principles can be read off of "Nature" or a normatively charged universe14
; (2)
that moral principles are tied to human nature -- and "nature" here has been used to indicate either the
search for basic or common human characteristics or (to the extent that this is different) some discussion
of human teleology, our purpose or objective within a larger, usually divine, plan15
; and (3) that there is a
16
One can find this view, for example, in the work of the modern French natural law
theorist, Jacques Maritain (1882-1973). According to Maritain's view: "The first principles of this
[natural] law are known connaturally, not rationally or through concepts -- by an activity that Maritain,
following Aquinas, called `synderesis.' Thus, `natural law' is `natural' because it not only reflects human
nature, but is known naturally. Maritain acknowledges, however, that knowledge of the natural law
varies throughout humanity and according to individuals' capacities and abilities, and he speaks of
growth in an individual's or a collectivity's moral awareness." William Sweet, Jacques Maritain, in
Stanford Encyclopedia of Philosophy, Fall 1999 Edition <plato.stanford.edu>.
17
George, Natural Law Ethics 462.
18
The more complicated point is explaining how such knowledge is obtained. Robert
George writes of "non-inferential acts of understanding wherein we grasp self-evident truths". Robert
P. George, In Defense of Natural Law87 (1999); see also Finnis, Natural Law and Natural
Rights 59-80.
6
kind of knowledge of moral truth that we all have by our nature as human beings.16
A further sharp division exists within the classical natural law tradition, among those who purport
to be interpreting and applying Aquinas's ideas. As characterized by one participant in the debate, the
question is whether the "knowledge of the reasonable, the good, and the right is derived from prior
knowledge of human nature or what is `natural' for human beings" or whether "something in the moral
domain is `natural' for human beings and in accord with human nature precisely in so far as it can be
judged to be reasonable; and something in this realm of discourse is `unnatural' and morally wrong just in
so far as it is unreasonable."17
It is not that one side makes a claim between human nature and the good
and the right, and the other side does not; it is more a matter of epistemology -- the path to knowledge.
One side claims that we come to know what is right and good by investigating human nature, while the
other side argues that knowledge of the good and the right comes by another path (usually a combination
of rationality and empirical observation),18
even if the "basic human goods and moral norms are what
19
George, In Defense of Natural Law85; see also Russell Hittinger, A Critique of
the New Natural Law Theory 10-20 (1987) (summarizing the Grisez-Finnis critique of more
traditional Thomistic approaches).
20
See Finnis, Natural Law and Natural Rights 33-36.
21
I am grateful to Robert Tuttle for the basic idea of this paragraph. For other
approximations of the same point, see, e.g., Hittinger, Introduction, in Simon, The Tradition of
Natural Law; Alexander Passerin d'Entrves, Natural Law(1996) (first published in 1951).
22
"Voluntarism" has been defined as "[t]he theological position that all values are so
through being chosen by God ...." Simon Blackburn, The Oxford Dictionary of Philosophy 396
(1994) (Blackburn also notes that a number of quite different philosophical and theological positions
also carry the label "voluntarism").
7
they are because human nature is what it is."19
One obvious advantage of not trying to derive moral
truths from descriptive claims about human nature is that one need not confront the objection
(summarized in Part I.E below) that this involves an inappropriate derivation of "ought" from "is."20
One might sense a broad, perhaps metaphoric notion that unites the various forms of traditional
natural law, and may even tie moral/political natural law moral theories to legal/social natural law legal
theories.21
The focus within natural law is away from conventional law, from civil law, to something
higher or (to change the image) more basic that rules or guides (perhaps teleologically). In the voluntarist
forms of traditional natural law,22
it is divine commands creating moral standards; in some forms of
Thomistic natural law, it is an ideal towards which humans, by their nature, strive; in recent natural law
legal theories, it is the sense to which conventional legal rules are approximations of what law really is
(Dworkin) or what law must try to be (Fuller). Additionally, it appears that in some strains of traditional
natural law theory, natural law is not understood by analogy to (or as an imperfect version of) positive
law, but rather the other way around: that it is natural law which is the primary focus, and positive law
23
Russell Hittinger, Natural Law as "Law": Reflections on the Occasion of "Veritatis
Splendor", 39 Am. J. Juris. 1 (1994).
24
An association between the Catholic Church and natural law theory continues, of
course, as recently exemplified by Pope John Paul II's encyclicals, "Veritatis Splendor" (August 6,
1993) and "Fides et Ratio" (September 14, 1998).
8
which should be understood in analogy to (or as an imperfect version of) natural law.23
To return to the original inquiry: why does it matter whether something is called "natural law" or
not, or what criteria we use for including or excluding theories from the category? The short answer is,
that it does not (or should not) matter at all. A label is just a label, and a theory rises and falls on its own
merits, not on the approach, school or tradition with which it is associated. That said, (1) it is a natural
and understandable reaction to the vast complexity of life (and almost comparably complex theoretical
literature) to deal with things in categories rather than individually; (2) there are times when one can
usefully describe attributes, and strengths and weaknesses, of a particular category of theories; and (3)
some theorists take pride in working out of a particular tradition, and seeing themselves as continuing a
project initiated by some great thinker of the past (whether that thinker be Thomas Aquinas, Thomas
Hobbes, Hans Kelsen, or H.L.A. Hart).
B. Natural Law and God
Natural law theory has become associated for many people with religious belief, in part because
of the long period during which those associated with the Catholic Church were the main elaborators
and defenders of that tradition.24
However, most of the important writers within this tradition have gone to some lengths to
25
Hugo Grotius, De Jure Belli Ac Pacis Libri Tres 13 (Francis W. Kelsey, trans.,
Clarendon Press, 1925) (1625) ("Prolegomena," para. 11). The position can probably be traced back
to earlier writers, including Gregor of Rimini (c. 1300-1358), Francisco de Vitoria (1492/94-1546),
and Francisco Suárez. See Finnis, Natural Law and Natural Rights 54. Suárez's summary of
Gregory of Rimini's position is quoted in Schneewind, The Invention of Autonomy 60. For an
argument that Grotius's role in this debate has been overstated, see id. at 67-68, 73-75.
26
Finnis, Natural Law and Natural Rights 49; see also Michael S. Moore, Good
Without God, in Natural Law, Liberalism, and Morality 221-70 (Robert P. George, ed., 1996).
27
See, e.g., Garet, Natural Law and Creation Stories, 236-37. See also John T.
Noonan, Jr., The Natural Law Banner, in Natural Law and Contemporary Public Policy 380-83, at
p. 382 (David F. Forte, ed., 1998): "The ressentiment nourished against natural law [by unbelievers]
arises because one who says `nature' says `creatureliness,' and creatures require a Creator. Law
requires a lawgiver, and one who speaks of a law governing human purposes speaks of a Lawgiver
transcending the state and individual desires."
28
While the contrast between will and reason can be helpful in analyzing a number of
topics within moral, legal and political theory, see, e.g., Vernon J. Bourke, Will in Western
9
dissociate the principles of natural law from belief in a particular religious tradition or from any kind of
belief in a (certain kind of) deity. Grotius may have been the first to make the statement plainly: "What
we have been saying would have a degree of validity even if we should concede
that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of
men are of no concern to Him."25
Contemporary writers within this tradition are often equally insistent about being able to offer "a
theory of natural law without needing to advert to the question of God's existence or nature or will."26
Other theorists within the tradition have insisted that one cannot understand the notion of natural law
without positing a supernatural being who is ordering compliance.27
The role of God within natural law theories is connected to differentiating such theories along the
lines of the relative prevalence of "will" or "reason."28
"Will" (or "fiat") refers to choices of individuals
Thought: An Historico-Critical Survey (1964); Francis Oakley, Medieval Theories of Natural Law:
William of Ockham and the Significance of the Voluntarist Tradition, 6 Nat. L. Forum 65 (1961);
Brian Bix, Jurisprudence: Theory and Context 121-26 (2nd
ed., 1999); Lon L. Fuller, Reason
and Fiat in Case Law, 59 Harv. L. Rev. 376 (1946), the contrast is rarely as sharp or as obvious as it
is within alternative approaches to traditional natural law theory.
29
See supra note 22.
30
Plato, Euthyphro 10a, in The Collected Dialogues 178 (Edith Hamilton & Huntington
Cairns, eds., 1961) (Lane Cooper, trans.). The words are echoed in the summary John Duns Scotus
(1266-1308) gives of a position of Aquinas: "for Thomas, Duns Scotus says, `what is commanded [in
the Decalog] is not good merely because it is commanded, but commanded because it is good in
itself.'" Schneewind, The Invention of Autonomy 23, quoting John Duns Scotus, Duns Scotus
on the Will and Morality 273 (Allan B. Wolter, ed. & trans., 1986).
10
or institutions, and the argument that the normative world is different because of such choices (e.g., the
orders of a sovereign or an individual's signing a contract), generally without taking into account the
content or the moral worth of those choices. "Reason," by contrast, is an argument based on the merit
of an action or interaction or institution, generally without regard to whether it was chosen or under what
circumstances it was chosen.
"Voluntarism"29
is a sub-category of natural law theories in which God ­ and, in particular,
God's will ­ plays an important role. One can go back to Plato's Socrates, who asks Euthyphro, "Is
what is holy holy because the gods approve it, or do they approve it because it is holy?"30
Voluntarism
is the position that something is good or morally required because -- and only because -- God has
ordered that we do it (or bad/morally-prohibited because of His prohibition).
Voluntarism of one type or another appears regularly in the history of natural law theory. For
example, the important 17th
century natural law theorist, Samuel Pufendorf, offered a voluntarist view,
which one commentator has summarized as follows: "[G]iven that we have the nature God gave us,
31
J. B. Schneewind, Samuel Pufendorf, in The Cambridge Dictionary of Philosophy
664 (Robert Audi, ed., 1995).
32
See Francisco Suárez, On Law and God the Lawgiver, Book II, Chapter VI,
excerpted in Moral Philosophy from Montaigne to Kant, vol. I, pp. 76-79 (J. B. Schneewind, ed.,
1990); see also Schneewind, The Invention of Autonomy 60-62.
33
In an important work that challenges many accepted views about natural law and
natural rights, Brian Tierney offers a historical analysis of rights and natural rights discourse, tracing the
idea of rights (or what European commentators often call "subjective rights") back to the twelfth
century, with fuller development in the thirteenth and fourteenth century. Brian Tierney, The Idea of
Natural Rights: Studies on Natural Rights, Natural Law, and Church Law 1150-1625 (1997).
Tierney rejects the view, summarized above, of natural law and natural rights as having been historically
11
certain laws must be valid for us, but only God's will determined our nature. As a result, our nature
indicates God's will for us. Hence observable facts about ourselves show us what laws God commands
us to obey."31
(There is also a compromise position: that actions are intrinsically good or bad, but we
are only required to pursue the good because God so commands us. This is Suárez's view.32
)
C. Natural Law and Natural Rights
Many people coming to the discussion assume that the two lines of thought, natural law and
natural rights, are interchangeable, or at least closely connected. In fact, a common view within the
literature is that the two traditions developed as competing views of the world. According to this view,
the natural law tradition posits a normatively ordered universe and the normative order described often
involves all individuals in society having a set place and corresponding duties. By contrast, natural rights
theories often deny or downplay a view of society as a whole except as a function of individuals and
their rights.
The matter remains highly controversial.33
Additionally, one should be careful not to overstate
competing rather than complementary theories.
34
John Finnis, Aquinas: Moral, Political and Legal Theory 172 & nn. 179-81
(1998) (summarizing Aquinas's views and giving citations to his texts); see generally id. at 132-80
("Towards Human Rights").
35
Id. at 272-74, 287-91.
36
See, e.g., Alexander Passerin d'Entrves, Natural Law51-62 (1994) (1951).
37
See Michael P. Zuckert, Do Natural Rights Derive From Natural Law?, 20 Harv. J.L.
& Pub. Pol. 695 (1997).
38
See Richard Tuck, The Dangers of Natural Rights, 20 Harv. J.L. & Pub. Pol. 683
(1997). Tuck cites Britain's recent use of citizens' right to security as a justification for taking away the
procedural rights of suspected terrorists, id. at 691, and the fact that the early natural rights theorists,
Grotius, Pufendorf, and Hobbes, "explicitly defended slavery and absolutism." Id. at 684 (footnote
12
the differences. A traditional natural law theorist like Aquinas refers to individual rights, for example, to
choose a vocation, to choose whether and whom to marry, and whether to subscribe to a particular
religious faith.34
Further, one can arguably find sufficient resources as much in Aquinas as in Locke to
justify disobedience and rebellion against tyranny.35
Still, it seems hard to deny that the natural rights approach, as it developed, encouraged and
reinforced an individualistic way of perceiving political and social realities in a way that traditional natural
law approaches did not.36
One can also sometimes find natural rights and natural law analyses in
tension, if not in complete conflict. Michael Zuckert has described the way that traditional natural law
theory tends towards discussions of duties, while the natural rights analyses of John Locke (and Thomas
Hobbes before him) tends towards discussions of liberties.37
A great deal will necessarily depend on the
particular social and political context, and natural rights will not always be the hero of the drama; e.g.,
one can find historical examples of "natural rights" undermining civil liberties.38
omitted).
39
See, e.g., Finnis, Natural Law and Natural Rights 198-99; Soper, Legal Theory
and the Problem of Definition, 1174.
40
However, as a moral and political theory, natural law theory is often brought out in
discussions of the moral and political controversies of the day. See, e.g., David F. Forte, ed.,
Natural Law and Contemporary Public Policy (1998); George, In Defense of Natural Law123-
245 ("Moral and Political Questions").
In the United States, natural law theory often arises in regards to questions of interpretation of
the United States Constitution, with theorists in sharp disagreement on what relevance, if any, natural
law theory might have on this question. See, e.g., Randy E. Barnett, Getting Normative: The Role of
Natural Rights in Constitutional Adjudication, in Natural Law, Liberalism, and Morality 151-79
(Robert P. George, ed., 1996); Walter Berns, The Illegitimacy of Appeals to Natural Law in
Constitutional Interpretation, in id., 181-93; Christopher Wolfe, Judicial Review, in Natural Law and
Contemporary Public Policy 157-89; George, In Defense of Natural Law110-11; Symposium
on Natural Law, 4 S. Cal. Interdisc. L.J.. 455-738 (1995); cf. G. Edward White, Earl Warren
222-30, 354-67 (1982) (describing the "natural law" aspects of Chief Justice Warren's approach to
constitutional interpretation).
13
The development of the idea of natural rights is a vast topic on its own, and cannot be discussed
at any length here. However, one should note at a minimum the obvious connection or parallel between
talk of "natural rights" (a label some avoid in part because of the apparent connection with natural law
theories) and the more common or more fashionable references to "human rights."39
D. Connection with Law
Contrary to a lay person's expectations, natural law theory often has little if anything to do with
"law" as that term is conventionally used.40
The "law" in natural law theory usually refers to the orders
or principles laid down by higher powers that we should follow. However, traditional natural law
theorists have had some important influences on thinking about law. First and foremost, natural law
41
Aquinas, Summa Theologiae Question 96, Article 4; see also Finnis, Aquinas 266-
74.
42
Finnis, Natural Law and Natural Rights 354-66.
43
Aquinas, Summa Theologiae Question 90, article 4, corpus.
44
Aquinas, Summa Theologiae, Question 95, article 2, corpus. On Aquinas's notion
of determinatio, the concretization by rational but rationally under-determined choice, see Finnis,
Aquinas 267-71.
John Locke may be presenting an idea similar to Aquinas's "determinatio" when he writes:
"The Obligations of the Law of Nature, cease not in Society, but only in many Cases are drawn closer,
and have by Human Laws know Penalties annexed to them, to inforce their observation." John
Locke, Two Treatises of Government II: chap. 11, § 135 (1690); cf. Jeremy Waldron, The
Dignity of Legislation 63-91 (1999) (arguing that Locke's text refers to a level of choice and
responsibility more substantial than Aquinas's "determinatio").
14
thinking was foundational in the development of international law, as theorists began to wonder what
principles could apply to disputes between nations (or between parties who were citizens of different
nations), especially when the parties had different political or religious beliefs.
A different aspect of natural law theory is better known to modern legal theorists: the
application by particular natural law theorists of their ideas to moral problems within the law. Best
known is probably Aquinas's discussions of the obligations of officials and citizens,41
a set of arguments
that has been further elaborated by other writers, including, recently, John Finnis.42
Aquinas defines
(positive) law as "a certain dictate of reason for the Common Good, made by him who has the care of
the community and promulgated."43
Aquinas holds that officials are directed to pass legislation
consistent with natural law. Sometimes the positive law can be derived from natural law principles, while
at other times the officials will have some choice or discretion in the determination of specific rules from
more general principles.44
Positive laws consistent with natural law "have the power of binding in
45
Aquinas, Summa Theologiae Question 96, article 4, corpus. To be more precise,
Aquinas said that "just laws" have the power of binding in conscience, and he lists three ways in which
a law can fail to be just: it does not pertain to the common good, the lawmaker was acting ultra vires,
or the burdens of the law are unequally distributed in the community. Aquinas, Summa Theologiae,
Question 96, article 4, corpus.
46
See id., Question 93, article 3, reply 2. For a modern treatment on similar lines, see
Finnis, Natural Law and Natural Rights 354-62.
The above discussion is connected with the expression "lex iniusta non est lex" ("an unjust law
is no law at all"), which is -- often imprecisely, if not quite erroneously -- ascribed to natural law
theorists. The expression is true, and indeed somewhat banal, when understood as saying that unjust
laws are not laws "in the fullest sense," in that they do not create moral obligations to obey them in the
way that just laws do. See Norman Kretzmann, Lex Iniusta Non Est Lex: Laws on Trial in Aquinas'
Court of Conscience, 33 Am. J. Juris. 99 (1988); Finnis, Natural Law and Natural Rights 363-
66; Bix, Jurisprudence: Theory and Context 64-66.
One can find commentators (often writers who do not consider themselves part of the natural
law tradition) who argue that laws which are not fully just can sometimes carry normative weight. See,
e.g., Philip Soper, Legal Systems, Normative Systems and the Paradoxes of Positivism, 8 Can. J.L.
Juris. 363, 375-76 (1995) ("the State does no wrong ... in acting on (enforcing) the norms which, in
good faith, it believes are necessary to govern society," though the claim is lost for truly wicked laws);
Jeremy Waldron, Lex Satis Iusta (unpublished manuscript, presented at the Hester Seminar, "Natural
Law Theory: Historical and Contemporary Issues," Wake Forest University, November 1997) (some
unjust laws can create an obligation to obey them). For a critique of Soper's view, see Joseph Raz,
The Morality of Obedience (book review), 83 Mich. L. Rev. 732 (1985).
15
conscience."45
Unjust laws do not create moral obligations, though one might have an obligation to
comply publicly with such laws if this is necessary to prevent a greater evil.46
Many opponents of natural law theory portray it as arguing that immoral laws necessarily lack
legalvalidity. That is, it is not merely the case that one has no moral obligation to obey, but one also has
no legalobligation. Occasionally one finds an assertion along those lines (or at least one open to such
interpretations) among the less sophisticated advocates of natural law theory. Sir William Blackstone
(1723-1780) offers the following comment in passing in his Commentaries: "no human laws are of any
47
William Blackstone, Commentaries on the Laws of England I.41 (1765-1769).
For a sympathetic portrayal of Blackstone's approach to natural law theory, see John Finnis,
Blackstone's Theoretical Intentions, 12 Nat. L.F. 163 (1967); see also Daniel J. Boorstin, The
Mysterious Science of the Law48-59 (1941).
48
John Austin, The Province of Jurisprudence DeterminedLecture V, at p. 158
(W.E. Rumble, ed., 1995) (1832).
49
It too quickly rushes an equivalence between enforcement and legal validity, leaving no
room for the concept of legal mistake (whether through error or corruption or abuse of power). See
Brian Bix, Law, Language, and Legal Determinacy 85-86 (1993).
16
validity, if contrary to [the law of nature]."47
This comment was taken by John Austin (1790-1859),
perhaps unfairly, as being about legalvalidity. There are (at least) two major problems with a claim that
injustice necessarily or always negates the legalvalidity of a rule. First, if one is using a normal
understanding of "legal validity," the assertion is simply empirically false. Consider Austin's response to
Blackstone:
"Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign
under the penalty of death; if I commit this act, I shall be tried and condemned, and
if I object to the sentence, that it is contrary to the law of God ... the Court of Justice
will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance
of the law of which I have impugned the validity."48
While this is slightly overstated,49
the basic point is that the concept of "legal validity" is closely tied to
what is recognized as binding in a given society and what is enforced, and it seems fairly clear that there
are plenty of societies where immoral laws are recognized as binding and are enforced. Someone might
answer that these immoral laws are not really legally valid, and the officials are making a mistake when
50
A different kind of claim would be that in a particular legal system, certain legal
principles, perhaps of a constitutional nature, ensure that no immoral enactment is (legally) valid under
that system. However, note that this is a contingent claim about a particular legal system, not a
statement about the general or conceptual nature of law.
51
This last is arguably what Blackstone was attempting to convey, as might be made
clearer by seeing Blackstone's quote in context:
"The law of nature, being coeval with mankind and dictated by God himself, is of
course superior in obligation to any other. It is binding over all the globe in all
countries, and at all times: no human laws are of any validity, if contrary to this;
and such of them as are valid derive all their force, and all their authority, mediately
or immediately, from this original.
Blackstone, Commentaries on the Laws of England I.41.
52
Philip Soper, Some Natural Confusions About Natural Law, 90 Mich. L. Rev. 2393,
2412-13 (1992).
17
they treat the rules as if they were legally valid.50
However, this is just to play games with words, and
confusing games at that. "Legal validity" is the term we use to refer to whatever is conventionally
recognized as binding; to say that all the officials could be wrong about what is legally valid is close to
nonsense. The interlocutor seems to be saying that immoral rules ought not to be recognized as binding
-- but this merely translates into either a proposal for reform of the society's legal practices, or a
restatement of the traditional natural law point that immoral laws create no moral obligations, whatever
legal obligations they might create.51
The second problem, clearly pointed out by Philip Soper,52
is that judgments under a natural law
standard, if incorporated within a legal system, would have to be made by fallible individuals working
within fallible institutions. No matter how able or how virtuous the decision-makers, the decisions would
have whatever significance they did by choice ­ this is what the authorized panel decided ­ rather than
53
One might add philosophical teachings which, though not directed specifically at natural
law doctrines, could be thought to push thinkers in a different direction: for example, (1) "Ockham's
razor," or the principle of parsimony, associated with William Ockham (c. 1285-1347), which holds
that "entities should not be multiplied beyond necessity" in the construction of theories, Robert Audi,
ed., The Cambridge Dictionary of Philosophy 545 (1995); and (2) the methodology of radical
doubt used by René Descartes (1596-1650) in his Meditations on First Philosophy (1641). Some
have taken the Ockham's nominalism as the force which "reduc[ed] Thomas's conception of ordered
justice to the competing interests and claims of individuals," thus leading to the (natural) rights analysis
of later centuries. Charles J. Reid, Jr., The Medieval Origins of the Western Natural Rights Tradition:
The Achievement of Brian Tierney(book review), 83 Cornell L. Rev. 437, 438-39 (1998).
However, this view of the role of Ockham is strongly contested, in particular by Tierney. See Brian
Tierney, The Idea of Natural Rights 195-203 (1997).
54
See Baruch Spinoza, Theological-Political Treatise, chapter iv (1670), excerpted
in J. B. Schneewind, ed., Moral Philosophy from Montaigne to Kant, vol. 1, 239-44 (1990); see
also Edwin Curley, The State of Nature and Its Law in Hobbes and Spinoza, 19 Philosophical Topics
97-117 (1991).
18
by reason. However well-intended the institution or the overall system, the result is a legal positivist
product (law because a certain authorized actor so declared) rather than a natural law product.
E. Opponents Actual and Potential
A variety of challenges has been brought to the general project of natural law theory, or to some
of its more prominent variations. While the full consideration and evaluation of these challenges is the
work of many volumes, it may be of value at least to mention some of the writers and themes.53
Baruch Spinoza (1632-1677), in his Theological-Political Treatise objected to the idea of God
as a law-giver on the basis that laws are commands and were the omnipotent Being to command
something, men could not but obey. Spinoza's approach offers no room for the notion of a divinely-
willed Natural Law that could be disobeyed as well as obeyed.54
55
Some would go further: emphasizing Hobbes's role in the development of natural law
thinking, arguing that "modern natural law theory begins with Hobbes rather than Grotius." Norberto
Bobbio, Thomas Hobbes and the Natural Law Tradition 149 (1993).
56
Excepting the right to defend oneself against a clear threat of death, a right Hobbes
generally treats as inalienable. For a discussion of Hobbes's view on the topic, see Richard Tuck,
Natural Rights Theories: Their Origin and Development 119-25 (1979).
57
See Thomas Hobbes, Leviathan, chapters 18, 26, 29 (Richard Tuck, ed.,
Cambridge University Press, 1996) (1651); Thomas Hobbes, Behemoth or the Long Parliament
50 (Ferdinand Tonnies, ed., Stephen Holmes, intro., 1990) ("It if be lawfull then for subjects to resist
the king, when he commands anything that is against the Scripture, that is, contrary to the command of
God, and to be judge of the meaning of Scripture, it is impossible that the life of any King, or the peace
of any Christian kingdom, can long be secure."); see also Richard Tuck, Introduction, in Leviathan,
supra, at ix, xxviii. On a slightly different theme, the necessity of sovereign command to make natural
law into actual law, see Hobbes, Leviathan, supra, chapter 26, at 191 ("The Authority of writers,
without the Authority of the Common-wealth, maketh not their opinions Law, be they never so true. ...
For though it be naturally reasonable; yet it is by the Soveraigne Power that it is Law.").
58
David Hume, Treatise of Human Nature, iii, 1.1 (1739).
59
There is some controversy over whether Hume's statement should be read this strongly.
A second interpretation (taking the quotation in its larger context), supported by a number of
commentators, is that Hume was concerned not about the move from the factual to the normative, but
rather the move from any true statement (whether factual or moral) and statements about motivation.
19
Thomas Hobbes (1588-1679) affirmed the existence of natural law,55
but stated that individuals
entering civil society will voluntarily surrender their rights to act on (their own interpretations of) it,56
for
the exercise of such rights would lead to chaos, a return to the war of all against all that entering civil
society was meant to avoid.57
In his Treatise of Human Nature, David Hume (1711-1776) famously commented on the
connection between "is" and "ought," that it seemed "altogether inconceivable that this new relation
["ought"] can be derived from others, which are entirely different from it."58
That is, one cannot derive
an evaluative or prescriptive conclusion from purely descriptive or empirical premises.59
To the extent
See, e.g., Stephen Buckle: Natural Law and the Theory of Property 282-83 (1991); see also
Finnis, Natural Law and Natural Rights 37-48.
60
See, e.g., Jacques Maritain, The Rights of Man and Natural Law(1943).
61
H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev.
593 (1958); Lon Fuller, Positivism and Fidelity to Law -- A Response to Professor Hart, 71 Harv. L.
Rev. 630 (1958).
20
that this is correct (and it has always been a matter of great controversy within philosophy), it seems to
undermine a major strand of the natural law theory tradition: that which seeks to derive moral
prescriptions from statements about the nature of human beings or the nature of the world. In fact, by
many accounts, Hume's argument, and similar challenges, did much to push natural law theory to the
sidelines of arguments about moral theory.
II. Modern Natural Law Theory
A. Introduction
Many of the important recent writers in natural law theory, like Jacques Maritain60
and John
Finnis, have continued within the tradition that goes back to Aquinas (and beyond). What may be most
distinctive in the recent work done under the name "natural law theory" are those writers who have
offered not a general ethical theory (with implications for law and policy), but instead a narrowly focused
theory of the nature of (positive) law. This Part will offer overviews of both types of modern natural law
theories.
A key moment in modern natural law theory is the exchange between H.L.A. Hart (1907-1992)
and Lon Fuller (1902-1978) in the Harvard Law Review in 1958.61
Hart located the separation
62
On the use and value of teleological explanations, see Larry Wright, Teleological
Explanations (1976).
63
See, e.g., Kenneth Winston, The Ideal Element in a Definition of Law, 5 Law & Phil.
89 (1986).
21
between legal positivism and natural law theory at the conceptual separation of law and morality -- that
is, the question of whether something (either a rule or a whole system) was "law" was conceptually
separate from its moral merit. A number of writers -- most prominently, Lon Fuller and Ronald
Dworkin -- have been willing to take on legal positivism on its own terms: arguing that one cannot
conceptually separate law and morality, that one cannot separate what law is from it ought to be.
Modern natural law theorists have offered the following responses to legal positivism:
(1) Law is best understood, at least in part, as a teleological concept62
: a concept or an
institution which can be properly understood only when the ultimate objective is kept in mind -- here,
the ultimate objective being a just society.63
This is in sharp contrast to the generally descriptive, largely-
empirical, morally-neutral approach one finds among the legal positivists.
(2) Though the legal positivists might be able to offer a simpler model of law, a model that bears
a better-than-passing resemblance to law in practice, a view of law that included more about the moral
64
See, e.g., Soper, Searching for Positivism, 1756 ("That we would be puzzled about
what to call standards that have no moral consequence at all is some evidence that the moral
qualification is not contingent but part of the essence of law.").
65
Arguably a legal positivist can incorporate claims about the moral claims of law, for that
can be stated in a neutral way, without evaluation of the claims. In fact, the legal positivist Joseph Raz
includes just such an element in his theory of law. See Joseph Raz, Ethics in the Public Domain
199 (1994) ("every legal system claims that it possesses legitimate authority"). The moral aspirations of
law, however, may take us over the line of moral neutrality.
66
One can find similar arguments offered by John Finnis, Natural Law and Natural
Rights 11-18, and Philip Soper, Searching for Positivism, 1753-57.
67
One can add an argument grounded on a linguistic point: the reason we may resist
calling what the Nazi's had as "law" is that the term is not merely descriptive -- it is not like saying, this
is a table, but it is not well-constructed. The term "law" has deep connections with morality, or at least
with justice, and to give some social institution that label inevitably carries with it some amount of moral
praise.
68
See, e.g., W. J. Waluchow, Inclusive Legal Positivism19-21 (1994).
22
claims64
and moral aspirations of law65
would be a more complete, and therefore better, theory of law.66
In both cases, the basic claim is that a (natural law) theory of law that incorporates moral
evaluation or other aspects of morality, will be superior to a legal positivist theory, because the fuller,
richer natural law theory includes or reflects aspects of our practice and experience of law that a (legal
positivist) theory, avoiding such elements, cannot.67
(One response to this argument might be that in
considering the relative merit of alternative theories, detail and level of accuracy are not the only values;
simplicity of a model is a countervailing merit.68
)
B. Lon Fuller
1. Critique of Legal Positivism
69
Fuller, The Morality of Law123. Similarly, Fuller would insist, legal theory is not
mere description: "definitions of `what law really is' are not mere images of some datum of experience,
but direction posts for the application of human energies." Fuller, Positivism and Fidelity to Law, 632.
70
Fuller, The Morality of Law96. Though the above text certainly has the
appearance of a definition or conceptual analysis of law, it should be noted that Fuller seemed to have
little regard for the project of "defining law." See Winston, The Ideal Element in a Definition of Law,
91.
23
Fuller's criticism of legal positivism can be summarized as follows: (a) legal positivism treats law
as an object -- an object of study, like any other such subject of scientific or quasi-scientific
investigation -- when it is better understood as a process or function; (b) legal positivism seems to
believe or assume, falsely, that the existence or non-existence of the law is a matter of moral indifference;
and (c) legal positivism presents law as a "one-way projection of authority," when it is better understood
as involving reciprocity between officials and citizens.
a. Law as Object vs. Law as Process
For Fuller, law is not merely an object or entity, to be studied dispassionately under a
microscope; law is a human project, with an implied goal ­ and an implied moral goal ­ the ability of
people to coexist and cooperate within society.69
It is not merely that law has an ideal, but that one
cannot truly understand law unless one understands the (moral) ideal toward which it is striving (there are
many human activities, from painting to jogging to boxing, that are hard to understand unless one knows
the objective or ideal towards which the participants are striving). Law is the "enterprise of subjecting
human conduct to the governance of rules."70
Law thus is a process, to be contrasted with the slightly
different process of managerial direction (the latter can be specific rather than general, is more attuned to
71
Fuller, The Morality of Law207-10.
72
See Michael S. Moore, Law as a Functional Kind, in Natural Law Theory:
Contemporary Essays 188, 207-08 (Robert P. George, ed., 1992).
73
See supra note 46.
24
attaining the objectives of the "rulemaker" -- as contrasted with law, whose purpose is usually primarily
helping citizens coexist, cooperate and thrive -- though, even with managerial direction, it is unwise to
make rules which oppress or confuse).71
The standard way to define or categorize objects is by assigning essential characteristics:
for example, a substance is "gold" if it has a certain chemical composition, and an animal is a mammal if
it is warm-blooded and suckles its young. A completely different approach to defining or categorizing
objects would be by its function: everything that cuts grass is a "mower"72
; everything that cuts food is a
knife, etc. Fuller's approach to law can be seen as rejecting the notion that "law" is best understood in
the first sense, as an object which can be analyzed down to its component parts. Instead, he would
argue, law is better understood as being the official response to particular kinds of problems -- in
particular the guidance and coordination of citizens' actions in society.
Once one takes a "functional" approach to law, then the mantra often ascribed to natural law
theory, "an unjust law is no law at all,"73
begins to make sense. We would certainly understand
someone who says that a long thin metal object which cannot cut (cannot even slice butter) is "hardly a
knife." Similarly, if one starts with the view that law is about guiding behavior, a purported legal system,
which is so badly constructed and badly run (e.g., containing many obscure, retroactive or contradictory
legal rules, with judicial applications of legal rules that do not match the content of those rules) that
74
Fuller's point is grounded in a procedural understanding of the nature of law; a
substantive variation of the same "functional argument" can be given: that legal rules are intended to
give reasons for action; immoral legal rules fail to give reasons for action, and thus fail to be law (in its
fullest sense), as one might say that logically invalid arguments, which fail to give reasons for belief, are
not really arguments. John M. Finnis, Problems in the Philosophy of Law, in The Oxford Companion
to Philosophy 468-72, at 469 (Ted Honderich, ed., Oxford: Oxford University Press, 1995).
75
Fuller, The Morality of Law204-07.
76
See Austin, The Province of Jurisprudence Determined.
25
citizens could not alter their behavior to comply with the law, even if they wanted to ... then it is not so
strange to say that a law or legal system which fails to guide behavior just is not law.74
b. Existence and Non-existence of Law: A Moral Good
Additionally, Fuller claims, legal positivism seems to assume that the existence or non-existence
of "law" within a society is a matter of moral indifference; however, the fact is that, at a minimum, living a
good life requires a societal structure that only a sound legal system can provide.75
The manner in which
the existence of law, or the existence of "law in its fullest sense," can effectuate certain moral goods will
be discussed further below, in the evaluation of Fuller's affirmative program.
c. One-Way Projection of Authority
Fuller argues that legal positivism sees laws mostly as a "one-way projection of authority" --
one party giving orders, and other parties complying. This is most obvious in John Austin's work, with
its reduction of law to the commands of a sovereign,76
but later legal positivists are arguably not that
different. This view of law, Fuller states, is a basic misunderstanding; so much of law, so much of a fully
77
Fuller, The Morality of Law209; see also id. at 39-40 ("[T]here is a kind of
reciprocity between government and the citizen with respect to the observance of rules. Government
says to the citizen in effect, `These are the rules we expect you to follow. If you follow them, you have
our assurance that they are the rules that will be applied to your conduct.' When this bond of
reciprocity is broken, nothing is left on which to ground the citizen's duty to observe the rules."
(footnote omitted)).
78
Id. at 212-14.
26
functioning legal system, depends on there being a reciprocity of duties between citizens and law-givers:
"the existence of a relatively stable reciprocity of expectations between lawgiver and subject is part of
the very idea of a functioning legal order."77
Only when citizens and officials cooperate, each fulfilling his
or her own functions, can law work; for example, officials promise to enforce the rules as promulgated,
to make the demands on citizens reasonable and consistent; to the extent that officials violate these
duties, the smooth running of society will begin to break down.
Fuller discusses the choice between the flexibility and power of broad discretion (directly
granted, or hidden in the use of vague or inconsistently-applied rules) as against the clear guidance of
always following a lucidly-written rule -- how managers in large companies and tyrants in wicked legal
systems find a use for lack of guidance and arbitrary will. We find this to be wrong in a legitimate legal
system, but our criticisms are not that arbitrary discretion is not "efficacious" -- it is quite useful for some
purposes, but it is contrary to the morality intrinsic to law and legitimate government.78
2. Fuller's Alternative: The Inner Morality of Law
Fuller's affirmative analysis develops from his evaluation of the shortcomings of legal positivism.
In the place of legal positivism, he offers an analysis that focuses on law as a process, a process that
79
See id. at 41-42.
80
Obviously, it is impossible to conform one's behavior to norms promulgated after the
fact; but Fuller understood that judicial decision-making will often have some retroactive elements.
Fuller's point was that, at a minimum, governments needed to be aware of the injustice of such
retroactive actions, and to work to keep them as infrequent as possible. See id. at 56-62.
81
See id. at 46-91. The labels used in the text sometimes vary slightly from those Fuller
used.
27
emphasizes the importance of the interaction between officials and citizens, and that makes more
transparent the way in which a legal order can be instrumental to the attainment of other goods.
Fuller offers a list of eight "principles of legality" which would serve as criteria for testing both the
minimal duties of a government, and also set the objective of excellence towards which a good
government would strive.79
Fuller's eight criteria are as follows:
- the rules must be general
- the rules must be promulgated
- retroactive rule-making and application must be minimized80
- the rules must be understandable
- they should not be contradictory
- they should not be impossible to obey
- the rules should remain relatively constant through time
- there should be a congruence between the rules as announced and as applied81
Following the principles makes it easier for a lawmaker to guide the behavior of its citizens (and for
citizens to be able to plan their activities knowing what they need to do to stay on the right side of the
82
As Robert Summers argued in Fuller's name: "Sufficient compliance with the principles
of legality necessarily guarantees, to the extent of that compliance, the realization of a moral value ...
that the citizens will have a fair opportunity to obey the law [whether the law is moral or immoral]."
Robert S. Summers, Lon L. Fuller37 (1984).
83
Compare Joseph Raz's similar list of "principles which can be derived from the basic
idea of the rule of law." Raz, The Authority of Law214-19 (1979).
84
On promulgation and understandability, the ideal is for all citizens to know all their legal
obligations fully and precisely, without the need of consulting a lawyer. It seems that even (or
especially) in modern, developed countries, we are very far from that ideal.
85
See, e.g., Fuller, The Morality of Law39.
28
law82
).
Some of Fuller's eight principles83
are best seen as minimal requirements, for which there is no
excuse ­ for example, laws which require the impossible or contradict one another. Others, such as the
minimizing of retroactive legislation, the full promulgation of laws and the understandability of the laws,
are best seen as ideals to which legal systems should always strive, but which we should not expect the
systems to meet perfectly.84
To the extent that one sees law as a process, as a means of guiding and coordinating human
behavior within society, this process will be more successful to the extent that Fuller's eight principles are
met. In this sense, one could also speak of systems which are "more legal" or "less legal." At one point,
Fuller talks of rule systems as "being legal" to a greater or lesser extent; at other times, he seems to
imagine some threshold beneath which a rule system which no longer qualifies as "legal."85
In any event,
the basic point is the same -- that rule systems that substantially comply with the eight requirements are
"legal systems," in the sense that they are likely to succeed to guiding the behavior of their citizens; rule
systems that do not substantially comply with the eight requirements are not "legal systems," in the sense
86
H.L.A. Hart, Lon L. Fuller: The Morality of Law, in Essays in Jurisprudence and
Philosophy 343-64 (1983).
87
Id. at 347-49.
88
Id. at 349-53.
Matthew Kramer raises a quite different line of criticism: following Fuller's principles of legality
might only lead consistently to the best results in the (unlikely) circumstance of a legal system which is
always and only serving virtuous objectives. Where a law or set of laws is less than morally optimal,
procedural deviations from what the laws (and Fuller's principles) would seem to require might actually
have a morally good effect. Matthew Kramer, Scrupulousness Without Scruples: A Critique of Lon
Fuller and His Defenders, 18 Oxford J.L. Stud. 235, 239-43 (1998). An analogous point might be
made through the example of promise-keeping. Most people assume that keeping promises is a
morally good thing. However, when considering someone who has made promises whose content is
wicked, or at least less than morally optimal, it is possible that breaking the promises will create morally
better consequences than keeping them.
One possible response to this line of argument is to question whether the value of Fuller's
29
that they are unlikely to be able to guide citizen behavior.
3. Criticisms
H.L.A. Hart, in a review of Fuller's The Morality of Law,86
argues that Fuller has shown that
law, to some extent, operates as a process, with an objective -- the objective being to guide behavior.
Hart has no argument with this as far as it went, nor does he doubt that following Fuller's eight guidelines
would make the legal system in question better able to guide.87
What Hart objects to is calling this
"morality" -- it is merely efficacy or efficiency; a neutral value as important to immoral people and
governments as to moral ones (one could easily, Hart famously notes, have a "inner morality of
poisoning"). If a legal system has evil ends -- like Nazi Germany or Apartheid South Africa, then
following these guidelines will allow the government to be more efficient in achieving those evil ends.88
approach depends (or depends exclusively) on its usefulness as a proxy for consequentialist
evaluations. As discussed earlier, Fuller's approach ­ a functionalist or teleological view of law ­ might
be defensible simply as a better or more complete view of the nature of law.
89
See Weinreb, Natural Law and Justice 185-94. Weinreb argues that justice is best
thought of as an often-uneasy combination of "entitlement" (his term for the following of the rules laid
down) and desert. Id. at 184-223.
90
Fuller, The Morality of Law202-03.
30
A number of replies could be offered (many of which Fuller in fact gives on his own behalf):
(1) As others have noted, "playing by the rules of the game" -- or playing the
game fairly, is itself an integral part of justice, even if not far from all of it89
(by analogy: it is still of some
virtue to keep one's promise, even if it was a promise to do something bad). Fuller gives the example
from the former Soviet Union, where the lawmakers there were once so concerned about the increase in
certain kinds of economic crime that they substantially raised the penalty, and to show how seriously
they took this kind of crime, they made the increase in sentence retroactive for those already in prison
for those offenses. The lawyers in the Soviet Union, not a country normally known for its adherence to
procedural justice, protested that this
was unjust.90
This is not just a question of "efficacy" -- if it were, one might applaud the extra deterrent power
that might come if a potential criminal knew that her actions might lead to even worse consequences than
are now advertised. If retroactive lawmaking is to be criticized, it is not at the level of efficacy, but at the
level of justice and morality.
(2) Certain kinds of evil are arguably less likely when proper procedures are followed: for
example, courts may be more likely to come up with just decisions when judges know that they must
91
George, In Defense of Natural Law114.
92
Fuller, Positivism and Fidelity to Law, 636.
93
See, e.g., Bix, Jurisprudence: Theory and Context 76-77. One can find mixed
evidence from Fuller's own writings regarding his views on this connection. At one point, he expressly
declines to state that the connection is logically entailed: "I have never asserted that there is any logical
contradiction in the notion of achieving evil, at least some kinds of evil, through means that fully respect
all the demands of legality." Lon Fuller, A Reply to Professors Cohen and Dworkin, 10 Vill. L. Rev.
660, 664 (1965). On the other hand, he denied that there were many, or perhaps any, actual historical
examples of such combinations. Fuller, The Morality of Law154.
94
See Anthony J. Sebok, Legal Positivism in American Jurisprudence 163-67
(1998).
31
give public reasons for their decisions (certain forms of corruption may be hard to rationalize).
Additionally, as one commentator has observed, "a wicked government's decision to act within the
procedural constraints of the rule of law affords the general population at least some measure of
security."91
(3) Fuller once wrote that he could not believe that a legal system which was procedurally
just would not also be substantively just92
-- certainly, a correlation exists (at least in the negative sense
that countries that care little for one are likely to care little for the other), but there have also been
countries which have promulgated evil in an efficient and meticulous way. On many accounts, Fuller's
faith in the connection between procedural and substantive justice is an optimistic, but peripheral part of
his theory.93
However, some commentators have treated it as central, arguing that Fuller's theory stands
or falls based on its (dubious) merit.94
C. Ronald Dworkin
95
Ronald Dworkin, Taking Rights Seriously (1977).
96
See Ronald Dworkin, Law's Empire (1986).
97
See id. at 225-28, 245-58.
98
There are additional complications: (1) the values of "fit" and "moral value" must both
be considered in comparing alternative tenable theories, id. at 228-258; and (2) Dworkin also speaks
of a value of "Integrity" ­ that judges should prefer an interpretation that makes the legal system speak
with a unified "voice." Id. at 225.
99
See id. at 52 ("constructive interpretation is a matter of imposing purpose on an object
or practice in order in order to make of it the best possible example of the form or genre to which it is
taken to belong.").
100
See, e.g., Ronald Dworkin, Legal Theory and the Problem of Sense, in Issues in
Contemporary Legal Philosophy 9, 13-15 (Ruth Gavison, ed., 1987).
32
Ronald Dworkin (1931- ) has been an immensely influential figure in English-language legal
philosophy, and also in political and moral philosophy. In legal philosophy, his early work offered a
wide-ranging criticism of H.L.A. Hart's version of legal positivism, a critique from which Dworkin built
his own theory of law.95
In later works, that theory was re-characterized as an interpretive theory of
law.96
According to Dworkin's approach, to determine what the law requires ­ what the law "is" ­ one
finds the best interpretation available of the relevant legal data: legislative acts, judicial decisions,
constitutional texts, and so on.97
As an interpretation, the theory must adequately fit the relevant data
(e.g., it cannot dismiss too many old judicial decisions as "mistakes"); additionally, to be a good
interpretation, it must also do well on the scale of moral value.98
Dworkin also argues that this approach
(which he calls "constructive interpretation"99
) is as appropriate for legal theorists discussing the nature of
a legal system as it is for lawyers and judges discussing what the law requires on a particular matter.100
101
See, e.g., Marshall Cohen, ed., Ronald Dworkin & Contemporary
Jurisprudence (1983); Andrei Marmor, Interpretation and Legal Theory (1992); Bix, Law,
Language and Legal Determinacy 77-132; Stephen Guest, Ronald Dworkin (2nd
ed., 1997).
102
Ronald Dworkin, "Natural" Law Revisited, 34 U. Fla. L. Rev. 165 (1982).
103
Another interesting "silence" in Dworkin's work regards Lon Fuller. Long before
Dworkin developed his interpretive approach to law, he wrote some articles critical of Fuller's
approach. See Ronald Dworkin, The Elusive Morality of Law, 10 Vill. L. Rev. 631 (1965); Ronald
Dworkin, Philosophy, Morality, and Law -- Observations Prompted by Professor Fuller's Novel
Claim, 113 U. Pa. L. Rev. 668 (1965). (Fuller responded to some of the points raised by Dworkin in
the "Reply to Critics" which appears in the Revised Edition of The Morality of Law. Fuller, The
Morality of Law198-202, 221-23, 238-40.) Though Dworkin's later, interpretive work converges
in some interesting way with Fuller's approach to law, Fuller is rarely mentioned (e.g., his name does
not appear in the detailed index of Law's Empire).
104
Dworkin, "Natural" Law Revisited, 165. Dworkin offers no opinion on whether this
view of natural law theory is historically accurate or succeeds in distinguishing legal positivism. Id.
33
The literature on Dworkin's work is vast.101
This is not the place extensively to revisit that
already well-traveled territory. Instead, this section will focus on Dworkin's work only in a tangential
way: discussing the way in which his work could be said to exemplify a natural law theory approach,
and what Dworkin's own work might indicate about the need or the viability of such a project.
Dworkin does not normally use the label "natural law" for his own work. In fact, with the
prominent exception of one lecture, later published as an article,102
he has avoided referring to "natural
law" entirely, either as a description of his own work, or as an approach to contrast with his own.103
In
that one reference, however, Dworkin concedes that his work might warrant the label "natural law": "If
the crude description of natural law I just gave is correct, that any theory which makes the content of law
sometimes depend on the correct answer to some moral question is a natural law theory, then I am guilty
of natural law."104
105
Here it is important to note Dworkin's equation of "law" with "what judges are
obligated to apply." See, e.g., Ronald Dworkin, A Reply by Ronald Dworkin, in Ronald Dworkin &
Contemporary Jurisprudence 247, 262 (Marshall Cohen, ed., 1983). This is a controversial and
significant point, significant because of the contrary perspective of the legal positivist, Joseph Raz. Raz
would have "law" defined in a legal positivist way, without reference to moral or evaluative terms, but
has no objection to the idea that judges are often authorized or obligated to include moral terms as part
of their decisions. See id.; Joseph Raz, Legal Principles and the Nature of Law, in Ronald Dworkin
& Contemporary Jurisprudence 73, 84-85; Joseph Raz, Postema on Law's Autonomy and Public
Practical Reasons: A Critical Comment, 4 Legal Theory 1 (1998).
106
John Finnis, Natural Law and Natural Rights (1980).
34
Dworkin is a natural law theorist in the sense that his approach to law and to legal theory rejects
a strict ("conceptual" or "necessary") separation between law and morality. Under his approach, the
choice between tenable interpretations of past official actions may easily come down to a determination
of which interpretation presents the legal system as better morally. Thus, within Dworkin's approach,
one cannot determine "what law is" without considering moral or evaluative matters.105
Additionally, Dworkin's approach has connections with other natural law approaches in that
"what law really is" is something different from the official decisions that most people conventionally
associate with the term. Judicial decisions, for example, are, under this view, at best the application of
interpretations, which in turn are only fallible guesses at what the law "really is," what it actually requires.
There is something toward which the (better) judicial decisions are striving.
D. John Finnis
John Finnis may be the natural law theorist best known to modern English-language legal
theorists. His work, in particular, Natural Law and Natural Rights,106
consciously works within the
107
Finnis has also written a detailed commentary on Aquinas. John Finnis, Aquinas:
Moral, Political, and Legal Theory (1998).
Finnis's own work has been grounded directly on Aquinas, and also indirectly, through
Germain Grisez's "re-presentation and development of classical arguments." See id. at viii; see also
Germain Grisez, The First Principle of Practical Reason: A Commentary on the Summa Theologiae,
1-2, Question 94, Article 2, 10 Nat. L. F. 168 (1965). The extent to which Finnis's account is
consistent with or deviates from Aquinas's teaching is a matter of contention. See, e.g., Russell
Hittinger, A Critique of the New Natural Law Theory (1987) (criticizing Grisez and Finnis).
108
The focus will be on Finnis's general discussions of natural law theory, which focus on
moral philosophy in the broadest sense. Finnis has also written two texts focused on morality and
ethics in a more narrow sense of those terms. John Finnis, Fundamentals of Ethics (1983); John
Finnis, Moral Absolutes: Tradition, Revision, and Truth (1991).
109
Finnis, Natural Law and Natural Rights 64; cf. Aquinas, Summa Theologiae
Question 94, art. 2 (discussing the apprehension of human goods through Practical Reason).
110
"Life" includes "every aspect of vitality" including physical health and procreation.
Finnis, Natural Law and Natural Rights 86-87.
111
Id. at 86-90. The quotation marks around "religion" are in the original, and signify that
it is meant to include all forms of inquiry about human nature and its place within the universe, even if the
35
tradition of Thomas Aquinas,107
emphasizing moral philosophy and meta-theory, while also contributing
to contemporary debates about the nature of law.
1. Moral Theory
a. Overview108
Finnis builds his moral theory from a foundation of "basic goods," goods we value for their own
sake, "aspects of authentic human flourishing, ... real (intelligent) reason[s] for action."109
In Natural
Law and Natural Rights, Finnis lists seven: life,110
knowledge, play, aesthetic experience, sociability
(friendship), practical reasonableness, and "religion."111
These are ends and purposes we can and do
result of such inquiries may, for some, be a kind of atheism or existentialism. Id. at 89-90.
Finnis notes that there may be other ways of listing or characterizing the basic goods, but he
does not think that there are other basic goods that could not be fit within his list of seven. Id. at 90-92.
Finnis in fact offers a slightly different list John M. Finnis, Is Natural Law Compatible with Limited
Government?, in Natural Law, Liberalism, and Morality 1-26, at p. 4 (Robert P. George, ed.,
1996).
112
Consider some goods whose value is clearly only instrumental: if a person reported that
she was collecting money or medicine not for the good that might be done with such objects, either in
the short-term or the long-term, but just in order to have more of those items, one might rightly question
her rationality or sanity.
113
Finnis, Natural Law and Natural Rights 34; see Finnis, Aquinas 90-94; see also
George, A Defense of Natural Law Theory 83-91 ("Natural Law and Human Nature").
114
Finnis, Natural Law and Natural Rights 100-26.
36
choose for their own sake, not merely (or always) as a means to other ends and purposes. It is not that
no one ever seeks a basic good, say, a friendship, as a means to another end, but that the basic goods
are those (few) ends and purposes which one can intelligibly choose for their own sake.112
The basic goods are grounded in human nature, not directly, in the sense of being read off a
metaphysical theory, but indirectly, in the sense that "[t]he basic forms of good grasped by practical
understanding are what is good for human beings with the nature they have."113
There are then nine intermediate principles for the treatment of these basic goods (principles
which Finnis labels "the basic requirements of practical reasonableness")114
:
- adopting a coherent plan of life
- having no arbitrary preferences among values
- having no arbitrary preferences among persons
- maintaining a certain detachment from the specific and limited projects one undertakes
115
See, e.g., Finnis, Aquinas, 314-19; John M. Finnis, Natural Law and the "Is" ­
"Ought" Question: An Invitation to Professor Veatch, 26 Catholic Lawyer266 (1981); George, In
Defense of Natural Law50-52. For a contrary position, emphasizing a hierarchy among values and
a stronger role for a sense of man's final end, see Hittinger, A Critique of the New Natural Law
Theory 65-198.
116
Finnis, Moral Absolutes 45 (footnote omitted); see George, In Defense of
Natural Law51 ("The concept of integral human fulfillment ... is not meant to indicate a supreme good
above or apart from the basic goods.").
117
Finnis, Natural Law and Natural Rights 64-69; see also George, In Defense of
Natural Law43-45, 61-66, 85-90, 262-66.
37
- not abandoning one's commitments lightly
- not wasting one's opportunities by using inefficient methods
- not choosing to do something which of itself does nothing but damage or impede
the realization of or participation in one or more of the basic goods
- fostering the common good of one's community
- act in accordance with one's conscience
Finnis's approach is thus teleological, but not in the way in which some natural theories are ­ there is no
single human (or superhuman) ideal towards which everyone must aspire.115
The prescription is rather
more general: "In voluntarily acting for human goods and avoiding what is opposed to them, one ought
to choose and otherwise will those and only those possibilities whose willing is compatible with integral
human fulfillment."116
Finnis holds the list of basic goods and the principles of practical reasonableness to be "self-
evident," but by that he does not mean that they are obvious or intuitive or that all reasonable people will
immediately assent.117
"Self-evidence" means primarily that the truths in question are not derived from
118
George, In Defense of Natural Law61-63.
119
At least those questions which have answers. It is common ground among Finnis and
many of his critics that there are important questions which may have no single, unique right answer (as
a moral matter), due either to the plurality of goods or (to the extent this is a different point) the
incommensurabilty of goods.
120
See, e.g., Ralph McInerny, The Principles of Natural Law, 25 Am. J. Juris. 1 (1980);
Henry B. Veatch, Book Review, 26 Am. J. Juris. 247, 255-59 (1981).
38
any more fundamental truth; they are "grasped by intelligent reflection on data presented by experience,"
supported indirectly by speculative and dialectical arguments.118
b. Criticism
Finnis's moral theory has been subject to a number of criticisms, representing a variety of
alternative views (and a number of controversial areas in which Finnis has been an active disputant).
One line of criticism, or at least questioning, is whether the combination of "basic human goods"
and "basic requirements of practical reasonableness" are sufficient to come up with answers (and to
come up with the right answers) to the important moral questions we face.119
From critics who offer
alternative readings to the natural law tradition generally, or Aquinas's views in particular, the challenge
regarding the adequacy of Finnis's approach is often connected with claims about its exegetical
accuracy.120
In terms discussed earlier, the exegetical question is whether Aquinas is best understood as
constructing a teleological view based directly on a view of human nature, or is best understood as
offering a kind of "virtue ethics" ­ that there are certain goods basic to human flourishing, that we know
121
On this debate, see, e.g., Hittinger, A Critique of the New Natural Law Theory;
George, In Defense of Natural Law59-75 (responding to Hittinger); McInerny, The Principles of
Natural Law; John Finnis & Germain Grisez, The Basic Principles of Natural Law: A Reply to Ralph
McInerny, 26 Am. J. Juris. 21 (1981)
122
See, e.g., Russell Hittinger, Varieties of Minimalist Natural Law Theory, 34 Am. J.
Juris. 133 (1989).
123
Steven D. Smith, Natural Law and Contemporary Moral Thought: A Guide from the
Perplexed (book review), 42 Am. J. Juris. 299, 316-21 (1997). One could concede the point and
still note that Finnis's approach does a better job than Kantian deontological theories in trying to
connect morality with a view of human well-being. See George, In Defense of Natural Law60-61.
124
Cf. Finnis, Natural Law and Natural Rights 95-97 ("Is Pleasure the Point of It
All?").
125
John Finnis, Is Natural Law Compatible with Limited Government?, in Natural Law,
Liberalism, and Morality 1-26, at 12-13 (Robert P. George, ed., 1996) (emphasis omitted).
39
or discover by using reason, and whose connection to human nature is (more) indirect.121
The
sufficiency criticism is that we can find the answers to the difficult moral questions only once we have a
full-fledged teleology with an ordered hierarchy of goods, rather than Finnis's list of equally-basic
goods.122
Steven Smith has suggested that Finnis's approach to "the basic goods" (and Finnis's use of
such concepts in his writings on sexual issues) reflect a too-great divide between the idea of "the good"
and actual persons' desires and experiences.123
Smith notes not only the absence of "pleasure" as a
"basic good," a good sought for its own sake,124
but also the strangely non-empirical status of claims like
the following: "[H]omosexual conduct (and indeed all extra-marital sexual gratification) is radically
incapable of participating in, actualizing, the common good of friendship."125
By non-empirical status,
Smith means that, in the context of Finnis's writings, it seems clear that Finnis would not consider the
126
Smith, Natural Law and Contemporary Moral Thought, 316-19.
127
Id. at 319-21.
128
Along with moral theory and legal theory, Finnis has also written on political theory.
See, e.g., Finnis, Is Natural Law Compatible with Limited Government?
129
Finnis, Natural Law and Natural Rights 260-64; John M. Finnis, Law as Co-
ordination, 2 Ratio Juris 97 (1989).
130
See Finnis, Natural Law and Natural Rights 164-65, 260-64; Veatch, Book
Review, 252-53.
131
Finnis, Natural Law and Natural Rights 3-11.
40
claim about homosexual conduct to be rebutted by testimony from homosexual couples claiming that
their intimate conduct is a way of maintaining, expressing, and strengthening friendship.126
However,
Smith argues, as the gap grows between "being a good" and "being experienced as a good," the
potential for disconnection grows between academic morality and our actual moral concerns.127
2. Legal Theory128
Law plays a role within Finnis's moral theory, in that there are certain common goods that are
best obtained through the specific kind of social coordination that law offers,129
and there is a sense in
which participation in the community and in the common good of building a (political) community is an
integral part of living a good life.130
Finnis also discusses legal theory in the narrower sense of the term.
In analyzing the concept of law, he agrees with the general approach of H.L.A. Hart: that one should
look at "law" (or "legal system") in its fullest or highest form, rather than in some lowest common
denominator of all systems we might consider "legal"131
; and that such an approach must incorporate the
132
Id. at 15.
133
Id. at 14-15; see also Finnis, Aquinas 257-58.
134
See Michael S. Moore, Good Without God, in Natural Law, Liberalism, and
Morality 221-70 (Robert P. George, ed., 1996); Law as a Functional Kind, in Natural Law
Theories: New Essays 188-242 (Robert P. George, ed., 1992); Moral Reality Revisited, 90
Michigan Law Review2424 (1992); The Interpretive Turn in Modern Theory: A Turn for the
Worse?, 41 Stan. L. Rev. 871 (1989) [hereinafter Moore, Interpretive Turn]; Precedent, Induction,
and Ethical Generalization, in Precedent in Law183-213 (Laurence Goldstein, ed., 1987)
[hereinafter, Moore, Precedent]; Metaphysics, Epistemology and Legal Theory, 60 S. Cal. L. Rev.
41
perspective of participants. However, Finnis narrows and strengthens Hart's "internal perspective": it is
"the viewpoint of those who not only appeal to practical reasonableness but also are practically
reasonable."132
According to Finnis, one must select the "internal viewpoint" according to the idea of
"central case" (the concept in its fullest sense), and that this will direct one away from a morally-neutral
perspective: "If there is a point of view in which legal obligation is treated as at least presumptively a
moral obligation ..., a viewpoint in which the establishment and maintenance of legal as distinct from
discretionary or statically customary order is regarded as a moral ideal if not a compelling demand of
justice, then such viewpoint will constitute the central case of the legal viewpoint."133
This may seem a
minor modification, but it is one sufficient to move a theorist across the border, from legal positivism (law
conceptually separated from morality) to natural law theory (moral evaluation central to understanding
law).
E. Michael Moore
Michael Moore offers a theory of law and legal practice built around metaphysically realist views
of morality, meaning, and reference.134
(Metaphysical realism is generally understood as a claim about
453 (1987) (book review); A Natural Law Theory of Interpretation, 58 Southern California Law
Review277 (1985) [hereinafter, Moore, Interpretation]; Moral Reality, 1982 Wisconsin Law
Review1061; and The Semantics of Judging, 54 S. Cal. L. Rev. 151 (1982). For an extended
critical overview of Moore's approach, see Bix, Law, Language and Legal Determinacy 133-77.
135
Michael Dummett has argued that realism would be better understood as a claim about
meaning and truth, in particular the application of bivalence to all statements within an area of discourse.
See, e.g., Michael Dummett, The Seas of Language 230-76 (1993). Most people who are realists
about an area of discourse under a semantics-based definition will also be realists under an ontology-
based definition. There are yet other (different, but overlapping) understandings of metaphysical
realism. For a good, brief overview, see Simon Blackburn, The Oxford Dictionary of Philosophy
319-20 (1994) ("realism/anti-realism").
136
Moore's own views on metaphysical realism emphasize ontological commitments, but
also includes views regarding truth, reference, and meaning. Moore, Moral Reality Revisited, 2432-40.
137
See, e.g., Moore, Interpretation, 286.
138
Moore, Precedent, 208. On "natural kinds," see Hilary Putnam, The Meaning of
"Meaning", in Mind, Language and Reality 215-71 (1975).
139
Moore, Interpretation, 291-301; Moore, Moral Reality Revisited, 2436-40. Even with
terms like the legal concept of "malice" (not to be confused with the everyday-speech use of that term,
which indicates a desire to harm others), Moore argues that this term "picks out some thing in the
world" and might be thought of as an example of a "moral kind." Moore, Interpretation, 333.
42
ontology135
­ that our words refer to objects whose existence and properties are independent of
conventional beliefs or observers' beliefs about the objects.136
) Moore does not merely assert that there
are right answers to moral questions (though he certainly asserts that137
); on ontological matters, he
posits the existence of "moral entities such as rights and duties, virtues and vices, and moral qualities
such as goodness and badness" as well as "moral kinds" (a moral analogue to natural kinds).138
On
meaning, he equates terms, including evaluative terms like "justice" with "natural kinds" or "natural kinds
of events," with meaning being supplied by "the best scientific theory we can muster" about the natural
kind or the natural kind of event in question.139
Moore, however, is not a Platonist on all matters: he is a
140
See, e.g., Moore, Interpretation, 312; Moore, Precedent, 197-98, 208-09.
141
See Moore, Law as a Functional Kind. "Unlike nominal kinds, items making up a
functional kind have a nature that they share that is richer than the `nature' of merely sharing a common
name in some language. Unlike natural kinds the nature that such items share is a function and not a
structure." Id. at 208.
142
Sometimes he argues or implies that most of us are already metaphysical realists,
however much we might deny it. See Moore, Interpretation, 322-26, 397-98. If one defines
metaphysical realism broadly enough, this is likely true (as indicated earlier, a similar claim could also be
made for "natural law theory," defined broadly enough).
143
Moore, Interpretive Turn, 873, 881-90; Moore, Moral Reality Revisited, 2468-91.
144
Moore, Precedent.
43
coherentist on epistemology,140
and he views law not as a natural kind, but as a "functional kind."141
Moore's challenge to those who are not metaphysical realists is to claim that metaphysical
realism is the correct approach,142
and that this approach requires us to modify our views about the
nature of law and how legal institutions should operate.143
The question might be characterized: how
should/would we ­ as lawyers, judges, legislators, citizens ­ act differently if we believed, and took
seriously, the notion of unique right answers to moral questions, and determinate referents to most
concepts (whether or moral, legal, or natural-kind terms)?
A robust belief in the existence and accessibility of moral truth, in a metaphysically realist sense,
helps and hinders legal analysis in a number of ways:
(1) Many of the notorious paradoxes and indeterminacies of precedential (common law)
reasoning may fall away if we believe (or assume) that there are "moral kinds."144
Then the proper way
145
See id.; see also Moore, Interpretation, 358-76. More precisely, most of the use for
the concept of "holdings" falls away. Moore, Precedent, 210-13. What we are doing at each step ­
both in deciding cases, and in describing past decisions ­ is trying to state "truths of the common law."
Id. at 210.
146
Id.
147
See, e.g., Ronald Dworkin, Law's Empire 313-99 (1986); Moore, Interpretation,
338-58; Antonin Scalia, A Matter of Interpretation (1997).
148
Moore, Interpretation, 323.
149
Id. at 338-58.
44
to (re)characterize the holding of a past case is as describing the application of a relevant moral kind145
;
additionally, the indeterminacy of characterization, that any judicial decision can be restated at different
levels of generality, falls away, at least in principle, for the correct level of generality is that of the moral
kind. Under Moore's approach, common law legal reasoning is understood as all-things-considered
moral reasoning ­ while emphasizing that one of those factors to be considered is the "institutional" or
"rule of law" argument, an argument that may result in the entrenchment of some past wrong decisions,
because of the relevance to moral reasoning of people's reliance interests.146
(2) The equally troublesome problems with determining the legislative intentions of the groups
who enacted legislation (or created constitutional language)147
might be circumvented if the lawmakers
"should be held to have the same linguistic intentions as other language users, namely [metaphysically]
realist ones."148
The lawmakers' intentions regarding the meaning or application of the terms they use
(beyond their realist intentions that words be understood according to their "real" meaning) are not
relevant.149
To put the same point a different way, judges should guide their interpretation of legal terms
(whether of statutory, constitutional, or common law origin) according to a metaphysically realist theory
150
Id. at 287.
151
Id. at 331-38, 383.
152
Id. at 286-88.
153
See, e.g., Ronald Dworkin, Taking Rights Seriously 123-30 (1977). Moore offers
a strong argument that Dworkin cannot maintain both his opposition to metaphysical realism and his
"right answer thesis." Moore, Metaphysics, Epistemology and Legal Theory, 475-94.
154
Moore, Interpretation, 308; Moore, Moral Reality Revisited, 2480, 2484-87.
155
See Bix, Law, Language, and Legal Determinacy 148-50. For Moore's response
to this line of argument, see Moore, Moral Reality Revisited, 2470-91.
45
of meaning ­ according to "the real nature of the things to which the words refer and not by the
conventions governing the ordinary usage of those words."150
Moore goes farther, arguing that even the
stipulated definitions within legislation are not to be given special deference; to the contrary, those
definitions should be treated as mere "conventional glosses" on the "real" meaning of terms (and it should
be assumed that this is how legislators wanted those definitions to be treated).151
(3) More generally, legal reasoning and interpretation should be derived from "the moral reality"
(and never merely from people's conventional beliefs regarding moral matters).152
(4) Moral realism, like any other form of right-answer theory (e.g., Ronald Dworkin's153
), would
direct judges to keep looking for the unique right answer to the difficult questions they face, not merely
to give up and decide the matter on the basis of policy or personal preference.154
An interesting aspect of Moore's approach, already noted, is that he prefers a coherentist
approach to knowledge. This sometimes leaves him vulnerable to the charge that his moral realism, at
least its ontological claims, are doing no work.155
When he contrasts his moral realist view with
156
Moore, Precedent, 209.
157
See Moore, Moral Reality Revisited, 2470-72.
158
See, e.g., id. at 2452-68, 2471-72, 2511-18.
159
See Moore, Moral Reality Revisited 2472 ("moral realism can make sense of some of
our adjudicatory practices such as judicial review ­ and thereby give us a reason to continue them, or
modify them, as the case may be ­ that moral conventionalism and moral skepticism cannot.").
46
"conventionalist" forms of coherence reasoning, he argues for the superiority of the former because it has
room for "mistake" and justifies the final conclusions not by mere "conventional acceptance" but "by
correspondence with what there is."156
However, if our only way of determining "what there is" is
coherence with conventional beliefs, then the differences may seem to be more in packaging than in
substance.
Moore offers a variety of responses to this line of argument. First, he assents that his theory is
one focused on ontology (what there is), not epistemology (what we know and how we justify our
claims of knowledge), but he considers this concession far from fatal.157
Second, he argues that
metaphysical realism explains our beliefs and practices better than alternative approaches; that is, the
theory is important because it is true, even if it would not or did not affect our practices.158
Third, he
argues that moral realism may be of value in that it can justify existing practices that might seem
problematic under a different moral or metaphysical view of the world.159
A related point: if judges see
themselves as acting on the basis on "the true nature of things" rather than merely acting on the basis of
personal idiosyncratic beliefs or conventional beliefs, this will (rightfully) affect the attitude the judges
160
Id. at 2469-91. This argument is tied in with the claim that moral realism can justify
unconventional, indeed revolutionary, responses to moral, legal, and political questions, in a way that
non-realist approaches cannot. See id.
161
See, e.g., id. at 2480-91.
162
See, e.g., Moore, Precedent, 201-04, 209-10; Moore, Interpretation, 372.
163
Cf. Sebok, Legal Positivism in American Jurisprudence 222-30 (describing
"strong epistemic natural law" approaches to constitutional interpretation).
47
carry towards the legitimacy of their actions.160
Fourth, he reaffirms his assertion that metaphysical and
moral realism do make a difference to how judges (should) act161
(a view summarizes elsewhere in this
section).
One category of questions that is prominently raised by Moore's work, but that is relevant to
many other modern writers within the natural law tradition, is the extent to which having the right moral
theory (or theory of meaning) can or should pre-empt other apparently political or institutional issues.
These are matters on which Moore himself is usually sensitive: e.g., to what extent should a judge
decline to reach the morally correct common law decision because prior judicial decisions came out the
other way?162
In other words, should judges affirm wrong or partly wrong decisions in deference to
"rule of law" values or similar concerns about consistency, reliance, predictability, equality, and the like?
A comparable question arises elsewhere in judicial reasoning, in particular in constitutional interpretation:
to what extent should judges (who ascribe to natural law thinking) act on the view that the natural law is
a part of the country's foundational law, or otherwise incorporate natural law learning into (all) legal
interpretations, even (or especially) if prior judicial decisions have taken a different view?163
While it is
hard to find real-world advocates for the extreme view that natural law truths should always trump
164
For this view, see, e.g., George, In Defense of Natural Law102-12; see also
Wolfe, Judicial Review.
165
See H.L.A. Hart, Essays in Jurisprudence and Philosophy 10 (1983) (Finnis's
natural law theory as being "in many respects complementary to rather than a rival to positivist legal
theory.").
166
Neil MacCormick, Natural Law and the Separation of Law and Morals, in Natural
Law Theory: Contemporary Essays 105-33 (Robert P. George, ed., 1992).
167
See John Finnis, The Truth in Legal Positivism, in The Autonomy of Law: Essays in
Legal Positivism195-214, at 203-05 (Robert P. George, ed., 1996).
48
institutional, "rule of law" reasons for adhering to mistaken precedent, one can find prominent natural law
theorists arguing for a position on the other extreme, that the natural law tradition offers no views on
judicial decision-making other than to instruct judges to defer to whatever the institutional and
interpretative rules are within the legal system in question.164
F. Relationship with Legal Positivism
1. Traditional Natural Law Theory and Legal Positivism
The founder of modern legal positivism, H.L.A. Hart, offered the opinion that there was little if
anything in a traditional natural law theory like that of John Finnis that he would have reason to object
to.165
A similar assertion of general agreement has been offered by another prominent legal positivist,
Neil MacCormick.166
Finnis has returned the favor, in a sense, asserting that traditional natural law
theory would be able to accept and affirm most of the statements which have been offered as tenets of
legal positivism.167
Even if one accepts that traditional natural law theory might be compatible with legal positivism,
168
Richard Dien Winfield, Law in Civil Society 1-2 (1995); a similar point is made in
John M. Finnis, Problems in the Philosophy of Law, in The Oxford Companion to Philosophy 468-
72 (Ted Honderich, ed., Oxford: Oxford University Press, 1995).
49
one should consider the argument that traditional natural law theory -- and, indeed, any comprehensive
moral or ethical theory -- undermines the project of legal positivism. Consider the following from
Richard Dien Winfield:
"[L]egal philosophy can proceed [as a discrete discipline] solely if it truncates its own
understanding by presupposing the normative neutrality of law. Only when the concept of
law is assumed to be independent of all norms applying to the domains of its jurisdiction
can legality be conceived apart from a far more encompassing investigation of ethics.
Otherwise, the rights and duties of other spheres will dictate what kind of rules law should
uphold and how legal practice should function, enjoining legal authority to examine every
facet of justice in order to determine the form and content of law. ...[] ... Only by
adopting a normatively indifferent stance can one entertain law as a discrete object of
investigation warranting separate study."168
Many of the modern natural law theorists discussed in this essay have confronted the extent to which
moral issues should, or must, be considered when constructing a descriptive theory of law. For
example, Michael Moore's theory can be seen as being particularly responsive to the type of concerns
Winfield raised.
Finally, one should note Roger Shiner's argument, that as legal positivist theories become more
sophisticated (to meet weaknesses in and criticisms of simpler forms of the theory), the resulting theories
169
Roger A. Shiner, Norm and Nature: The Movements of Legal Thought (1992).
170
H.L.A. Hart, The Concept of Law55-58, 91-99 (2nd
ed., 1994); see Brian Bix,
H.L.A. Hart and the Hermeneutic Turn in Legal Theory, 52 SMU L. Rev. 167 (1999).
171
Raz, Ethics in the Public Domain 199.
172
Raz has elsewhere argued eloquently against the proposition that even generally just
legal systems create a general obligation of obedience. See, e.g., id. at 325-38; Joseph Raz, The
Authority of Law233-49 (1979).
173
See Raz, Ethics in the Public Domain 199-204.
174
For a variety of perspectives of Raz's argument, see, e.g., Brian Leiter, Realism, Hard
Positivism, and Conceptual Analysis, 4 Legal Theory 533, 540-44 (1998); Waluchow, Inclusive
Legal Positivism123-40; Jules L. Coleman, Incorporationism, Conventionality, and the Practical
Difference Thesis, 4 Legal Theory 381, 413-20 (1998).
50
verge on natural law theories.169
Shiner's point may be most obvious in some recent efforts by legal
positivists to discuss the normative aspects of law in a detached and descriptive manner. The most
prominent example may be H.L.A. Hart's use of the internal aspect of rules and law in his legal theory,
which allowed theory to take into account the fact that participants in the practice "accept" the legal
norms as reasons for action, without in turn endorsing that judgment.170
Consider also Joseph Raz, who,
within his legal theory, builds much of his analysis from the assertion that "every legal system claims that it
possesses legitimate authority."171
(It is important in this context to emphasize the "claim" in the phrase
"claim ... [to] possess legitimate authority," for Raz certainly does not believe that all legal systems in fact
"possess legitimate authority."172
) According to Raz, much follows from this truth about legal systems,
because even to have the capacity to be authoritative law must offer guidance which can be followed
without reference to the general (moral and prudential) reasons that the guidance was meant to
supplant.173
The point is not to evaluate the value or truth of Raz's argument,174
but only to point out
175
See, e.g., Bix, Jurisprudence: Theory and Context 7-8; Philip Soper, Legal
Systems, Normative Systems, and the Paradoxes of Positivism, 8 Canadian J.L. Juris. 363, 373
(1995).
176
Soper, Legal Systems, Normative Systems and the Paradoxes of Positivism, 373.
177
Cf. Raz, Ethics in the Public Domain 238-43 (analyzing the general nature of rights:
emphasizing some of the problems of building a theory based on what happens with legalrights, and
discussing the question of whether legal rights are best understood as a sub-category of institution-
based rights or, alternatively, as a sub-category of moral rights).
51
how Raz uses an aspiration that could easily be characterized as moral, the claim to possess legitimate
authority, in a way which does not seem to "taint" the moral neutrality of his analysis.
Relevant to the above discussion, one should note a problem frequently overlooked, or at least
under-emphasized, in legal theory: the extent to which the claims being made about law are special to
law, or are rather only a particular instance of a more general truth ­ e.g., about all social institutions or
all normative systems.175
For example, consider the argument of critics of legal positivism, that it is
inadvisable or impossible to separate the description of legal systems from their evaluation. If this
argument is valid, it would seem likely (though by no means certain) that it would apply equally well to
attempts to separate the description and evaluation of morality.176
One should be suspicious of theories
which offer claims that purport to apply solely to law. One should test these claims in the context of
other social institutions and other normative systems; to the extent that the claims do not seem valid in
those other or broader contexts, there would be reason to doubt their validity in the legal context.177
2. Modern Natural Law Theory and Inclusive Legal Positivism
A number of countries have judicial review of legislative validity based on written constitutions or
178
See Dworkin, Taking Rights Seriously 1-130.
179
A somewhat different perspective on the same inclusive legal positivist view is that
moral principles can be part of the test for legal validity if and only if this is authorized by some social
convention (e.g., a written constitution or an earlier authoritative judicial ruling).
180
Of course, by the claimed separation of law and morality, legal positivists do not mean
to deny that morality does and should play a role in the creation and evaluation of legal rules and legal
decisions. See, e.g., Hart, The Concept of Law203-06.
181
This is also known as "incorporationism," "soft legal positivism," and "soft
conventionalism."
52
some other source of higher principle. Some critics of legal positivism, in particular Ronald Dworkin,
have argued that legal positivism cannot account adequately for such practices, and what is needed
instead is a theory which accepts the necessary intersection of law and morality.178
Evaluating the merits of the criticism depends in part on interpreting the legal positivist claim that
no necessary or conceptual connection exists between law and morality. Does this mean merely that
moral evaluation need not be part of the test of legal validity (but may be part of such a test in particular
legal systems),179
or does it mean that moral evaluation can never be part of the test for legal validity?180
The first perspective is that of "inclusive" legal positivism181
; the second is "exclusive" legal positivism.
Both views are discussed at length elsewhere in this book, but for the moment it is worth noting that both
views see themselves as forms of legal positivism, to be distinguished from natural law theory. While the
difference between inclusive legal positivism and some modern, law-focused versions of natural law
theory might seem slight, they are differences of theoretical significance.
G. Other Natural Law Legal Theories
182
Hart, The Concept of Law193-200.
183
For an interesting presentation of a different view, developing Hart's discussion in the
direction of a more substantial (and more traditional) natural law approach, see Kenneth I. Winston,
Introduction, in Lon L. Fuller, The Principles of Social Order24-26 (Kenneth I. Winston, ed.,
1981); see also Randy E. Barnett, The Structure of Liberty 10-12 (1998).
184
See Bix, Jurisprudence: Theory and Context 43-44.
185
Randy E. Barnett., The Structure of Liberty: Justice and the Rule of Law
(1998). For a detailed critique, see Lawrence B. Solum, The Foundations of Liberty (book review),
97 Mich. L. Rev. 1780 (1999).
53
There are a variety of other recent theories of law which might fit into the category of natural
law. Late in his book, The Concept of Law, in the course of describing where law and morality overlap,
H.L.A. Hart introduces the notion of "the minimum content of natural law."182
The discussion occurred
in the context of offering an overview of the various ways in which morality and law do overlap (overlaps
consistent with the legal positivist dogma that there is no "necessary" or "conceptual" connection
between the two). Hart speculates that any system of law or conventional morality that does not offer at
least minimal protections (e.g., against violent assault) to at least some significant minority of the
population (as might be done in societies where an elite minority rules, while the majority population is
enslaved or otherwise treated as second-class citizens) could not long survive. While there is a slight
resemblance, more in title than in substance, between Hart's discussion and traditional natural law
theory, the similarities do not run very deep.183
Hart was making an empirical prediction (and a fairly
uncontroversial one at that), he was not offering a moral theory or a conceptual claim.184
Randy Barnett gives a provocative twist to the traditional natural law approach.185
Whereas
many writers in this tradition offer theories along the line of "given human nature and/or the nature of the
186
Weinreb, Natural Law and Justice. For a critical analysis of Weinreb's approach,
see Robert P. George, Recent Criticism of Natural Law Theory (book review), 55 U. Chi. L. Rev.
1371, 1372-1407 (1988).
187
Ernest J. Weinrib, The Idea of Private Law(Cambridge, Mass.: Harvard
University Press, 1995).
188
Deryck Beyleveld & Roger Brownsword, Law as a Moral Judgment (London:
Sweet & Maxwell, 1986).
189
Winfield, Law in Civil Society (1995).
190
Alan Brudner, The Unity of the Common Law: Studies in Hegelian
Jurisprudence (Berkeley: University of California Press, 1995).
54
cosmos, certain things follow (prescriptively)," Barnett's analysis follows the argument structure, "given
human nature, if one wants to obtain certain generally accepted social goals (security, prosperity, liberty,
etc.), certain institutions and rules should be established." What results is a liberal-libertarian programme
that will not be to every person's liking, but one might nonetheless appreciate the novel adaptation of a
natural-law-like method of analysis and investigation.
A number of other approaches merit mention, though can only be summarized briefly. Lloyd
Weinreb has tried to reconstruct the original (that is, ancient Greek) understanding of natural law theory,
natural law theory as viewing a normative order within nature.186
Ernest Weinrib analyzed private law in
terms borrowed from Aristotle and Kant -- that private law has a set form from which we can
determine, generally if not exhaustively, the moral obligations parties owe one another and the proper
doctrinal rules and institutional structures that should be established.187
Derek Beyleveld & Roger
Brownsword put forward a legal theory based on Alan Gewirth's writings in moral philosophy.188
And
Richard Dien Winfield189
and Alan Brudner190
have offered theories of law grounded in a Hegelian view
55
of society and law's role within it.
III. Overview and Conclusion
Two basic questions should be asked when evaluating the writers and debates summarized in
this essay: (1) What criteria could be offered to judge the debates? and (2) What is at stake in the
debates? In the arguments for and against most traditional natural law theories, the terms are relatively
easy to locate. Those natural law theorists are offering (a) the moral claim -- this is how one should act;
(b) the meta-ethical claim -- this is how one goes about deciding moral questions; and/or (c) the meta-
theoretical claim for Jurisprudence -- one should approach the study of law through a perspective of
practical reasoning or some form of teleological analysis. In evaluating arguments made within or against
natural law theories, one must determine which sort of claim is at issue in the theory, and only then can
one determine the grounds for evaluation.
Much of the natural law tradition is grounded in moral philosophy, a point too easily forgotten
when natural law theory is brought into debates in other areas, and this forgetting has caused much of the
misunderstanding of natural law doctrines within the jurisprudential literature. Natural law theory, in all of
its permutations, does have things to say to and about legal theory. Perhaps its most important
argument for these purposes is that views of law which take into account law's moral aspirations offer a
fuller, and thus better, understanding of that social institution, compared to views that ignore or
marginalize such considerations.
56
See also: The Classic Natural Law Tradition; Exclusive Legal Positivism;
Inclusive Legal Positivism; Methodology
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