What Is Law? A Century of Arguments.

by Robert P. George
There is a sense in which twentieth-century legal philosophy began on January 8, 1897. On that ay, Oli!er "enell
#ol$es, then a %ustice o& the 'upre$e Juicial (ourt o& )assachusetts, spo*e at a cere$ony eicating the new hall
o& the +oston ,ni!ersity 'chool o& -aw. .n his re$ar*s, which were publishe that spring in the #ar!ar -aw
Re!iew uner the title The Path o& the -aw, #ol$es sought to ebun* the %urispruence o& the past an to propose a
new course &or $oern %urists an legal scholars. #ol$es/ the$es--the 0uestion o& law/s ob%ecti!ity an the
relationship between law an $orality--ha!e preoccupie legal philosophy in the century that was then awning an
has now rawn to a close.
The opening sentence o& #ol$es/ lecture in!ite his auience--lawyers, law pro&essors, an law stuents--to consier
what it is we stuy when we stuy law. "e are not, he sai, stuying a 1$ystery,1 but, rather, 1a well-*nown
pro&ession.1 People are willing to pay lawyers to a!ise an represent the$ because 1in societies li*e ours the
co$$an o& the public &orce is entruste to the %uges in certain cases, an the whole power o& the state will be put
&orth, i& necessary, to carry out their %ug$ents an ecrees.1 2ow, this is a &earso$e power. 'o people 1will want to
*now uner what circu$stances an how &ar they will run the ris* o& co$ing against what is so $uch stronger than
the$sel!es, an hence it beco$es a business to &in out when this anger is to be &eare.1 The ob%ect o& the stuy o&
law, there&ore, 1is preiction, the preiction o& the incience o& the public &orce through the instru$entality o& the
courts.1
This was the thesis o& The Path o& the -aw. .t was intene, . belie!e, as a pro!ocation. 3n so #ol$es &or$ulate it
in pro!ocati!e ways4

3 legal uty so calle is nothing but a preiction that i& a $an oes or
o$its certain things he will be $ae to su&&er in this or that way by
%ug$ent o& the court.... The prophecies o& what the courts will o in
&act, an nothing $ore pretentious, are what . $ean by the law.... The uty
to *eep a contract at co$$on law $eans a preiction that you $ust pay
a$ages i& you o not *eep it--an nothing else.

The power o& pro!ocation is usually enhance to the e5tent one obscures one/s intention to pro!o*e. 3n so #ol$es
clai$e $erely to be proposing a 1businessli*e unerstaning o& the $atter.1 'uch an unerstaning, he insiste, re0uires
us strictly to a!oi con&using $oral an legal notions. This is i&&icult, #ol$es suggeste, because the !ery language o&
law--a language o& 1rights,1 1uties,1 1obligations,1 1$alice,1 1intent,1 etc.--lays a 1trap1 &or the unwary. 16or $y own
part,1 he eclare in another &a$ously pro!ocati!e sentence, 1. o&ten oubt whether it woul not be a gain i& e!ery wor
o& $oral signi&icance coul be banishe &ro$ the law altogether, an other wors aopte which shoul con!ey legal
ieas uncolore by anything outsie the law.1 #ol$es/ i$plicit enial o& law/s ob%ecti!ity is not unconnecte to his
insistence on the strict separation o& $oral an legal notions. 1One o& the $any e!il e&&ects o& the con&usion between
legal an $oral ieas,1 he state, 1is that theory is apt to get the cart be&ore the horse, an to consier the right or the
uty as so$ething e5isting apart &ro$ an inepenent o& the conse0uences o& its breach, to which certain sanctions are
ae a&terwar.1 3 correcti!e, accoring to #ol$es, was to aopt the !iewpoint o& a 1ba $an1 when trying to
unerstan the law as such4

.& you want to *now the law an nothing else, you $ust loo* at it as a ba
$an, who cares only &or the $aterial conse0uences which 7legal8 *nowlege
enables hi$ to preict, not as a goo one, who &ins his reasons &or
conuct, whether insie the law or outsie o& it, in the !aguer sanctions
o& conscience.
3n what e5actly is being correcte by aopting the ba $an/s point o& !iew9
:ou will &in so$e te5t writers telling you that 7the law8 is so$ething
i&&erent &ro$ what is ecie by the courts o& )assachusetts or ;nglan,
that it is a syste$ o& reason, that it is a euction &ro$ principles o&
ethics or a$itte a5io$s or whatnot, which $ay or $ay not coincie with
the ecisions. +ut i& we ta*e the !iew o& our &rien the ba $an we shall
&in that he oes not care two straws &or the a5io$s or euctions, but
that he oes want to *now what the )assachusetts or ;nglish courts are
li*ely to o in &act.

1. a$,1 #ol$es eclare, 1$uch o& his $in.1 'till &or all his s*epticis$--legal an $oral--#ol$es enie that his was
1the language o& cynicis$14

The law is the witness an e5ternal eposit o& our $oral li&e. .ts history
is the history o& the $oral e!elop$ent o& the race. The practice o& it, in
spite o& our popular %ests, tens to $a*e goo citi<ens an goo $en. "hen
. e$phasi<e the i&&erence between law an $orals . o so with re&erence to
a single en, that o& learning an unerstaning the law.
Going still &urther, #ol$es clai$e to 1!enerate the law, an especially our syste$ o& law, as one o& the !astest proucts
o& the hu$an $in.1 .t was not, he assure his reaers, isrespect &or the law that pro$pte hi$ to 1critici<e it so &reely,1
but rather a e!otion to it that e5presses itsel& in a esire &or its i$pro!e$ent. #ol$es/ ai$ was $erely, he sai, to
e5pose so$e co$$on &allacies about what constitutes the law. 6or e5a$ple, so$e people--#ol$es oesn/t tell us who
they are--hol that 1the only &orce at wor* in the e!elop$ent o& the law is logic.1 This erroneous way o& thin*ing is,

1
#ol$es a!ise his auience, 1entirely natural1 &or lawyers, gi!en their training in logic with its 1processes1 o& analogy,
iscri$ination, an euction, but it is erroneous ne!ertheless. )oreo!er, 1the logical $etho an &or$ &latter that
longing &or certainty an &or repose which is in e!ery hu$an $in.1 1+ut,1 #ol$es went on to say,
certainty generally is an illusion, an repose is not the estiny o& $an.
+ehin the logical &or$ lies a %ug$ent as to the relati!e worth an
i$portance o& co$peting legislati!e grouns, o&ten an articulate an
unconscious %ug$ent, it is true, an yet the !ery root an ner!e o& the
whole proceeing.

2ow, this is getting interesting. The $an who woul later utter, in another connection, the &a$ous aphoris$ that 1the li&e
o& the law has not been logic, it has been e5perience,1 has alreay tol his auience in this lecture that law is a $atter o&
preiction, o& prophecies o& what courts will o in &act. #e has also e5presse great s*epticis$ about the role o& logic in
guiing the ecision-$a*ing o& %uges whose rulings, one way or the other, will constitute the law. 'o, how are those
ecisions to be rationally guie9 "hat is 1the law1 &ro$ the perspecti!e, not o& the 1ba $an,1 but o& the 1goo %uge1
who, lacing a ispute 0uestion o& law, will not be co$&orte by the assurance that 1the law1 is a preiction o& how he
will in &act resol!e the case9 .n &act, what he wishes to o is to resol!e the case accoring to the law. That, he supposes,
is his %ob. #e wants to rule on the $atter &a!orably to the litigant whose cause is supporte by the superior legal
argu$ent. +ut what constitutes legal argu$ent9 "hat are the sources o& law upon which legal reasoning operates9 O&
course, one caniate &or inclusion in the list o& legal sources is history. 3n accoring to #ol$es, 1The rational stuy o&
law is still to a large e5tent the stuy o& history.1 .s this goo or ba9 1#istory $ust,1 #ol$es says, 1be a part o& the
stuy, because without it we cannot *now the precise scope o& rules which it is our business to *now.1 +ut then co$es
the punch line4 1.t is a part o& the rational stuy, because it is the &irst step towar an enlightene s*epticis$, that is,
towar a eliberate reconsieration o& the worth o& those rules.1
'o, history is not a source in the sense that the legal rules unco!ere =an whose $eaning is clari&ie> by historical
in0uiry are authorities that guie the reasoning o& the conscientious %uge. On the contrary, such stuy has its !alue in
e5posing such rules to 1an enlightene s*epticis$1 regaring their !alue. +ut then, by appeal to what stanars are such
%ug$ents o& !alue to be $ae9 3n--$ost critically--are these stanars internal to the law or e5ternal9 ?oes the %uge
isco!er the proper stanars in the legal $aterials--the statutes, the cases, the learne treatises--or bring the$ to those
$aterials9 .& the latter, then what is the iscipline &ro$ which he eri!es the$9
These are 0uestions that will be central to the theoretical re&lections o& %urists an legal scholars throughout the twentieth
century. They will be answere one way by Jero$e 6ran* an his &ellow 1legal realists1 in the &irst hal& o& the twentieth
century, an precisely the opposite way by Ronal ?wor*in an his &ollowers in the secon hal&. #. -. 3. #art--the
greatest o& the ;nglish-spea*ing legal philosophers o& the century--will re&er to the realists/ answer as the 1night$are1
that law oes not e5ist, an to ?wor*in/s answer as the 1noble rea$1 that law as such pro!ies a 1right answer1--a
single uni0uely correct resolution--to e!ery ispute that $a*es its way into the courtroo$.
#ol$es/ own answer was tantali<ingly a$biguous. .n The Path o& the -aw he sai at one point, 1. thin* ... the %uges
the$sel!es ha!e &aile ae0uately to recogni<e their uty o& weighing consierations o& social a!antage.1 3t another
point he $ae this re$ar*able state$ent4

. loo* &orwar to a ti$e when the part playe by history in the e5planation
o& 7legal8 og$a shall be !ery s$all, an instea o& ingenious research we
shall spen our energy on a stuy o& the ens sought to be attaine an the
reasons &or esiring the$. 3s a step towar that ieal it see$s to $e that
e!ery lawyer ought to see* an unerstaning o& econo$ics.
Three-0uarters o& a century later, Richar Posner, 6ran* ;asterbroo*, Richar ;pstein, Guio (alebresi, an other
theorists an practitioners o& the 1econo$ic analysis o& law1 woul ta*e this last piece o& a!ice 0uite literally. Their
boo*s, law re!iew articles, an--in the cases o& Posner, ;asterbroo*, an, $ost recently, (alebresi--%uicial opinions
woul sub%ect legal rules an social policies to cost-bene&it tests an other &or$s o& econo$ic analysis to assess their
instru$ental rationality an thus, in so$e cases, their legal !aliity. "hat these scholars an %urists o &its pretty well
with #ol$es/ esire &or lawyers an %uges to 1consier the ens which the se!eral rules see* to acco$plish, the reasons
why those ens are esire, what is gi!en up to gain the$, an whether they are worth the price.1 +ut, one $ust as*,
woul #ol$es really appro!e their oing it9 3lthough #ol$es was, in his politics, 1a $oerate, liberal re&or$er,1 he
was resolutely eter$ine, as a %uge, not to 1legislate &ro$ the bench.1 .nee, uring a perio o& unpreceente
1%uicial acti!is$,1 he beca$e the sy$bol o& opposition to the %uicial usurpation o& legislati!e authority uner the
guise o& interpreting the (onstitution. 3s a Justice o& the 'upre$e (ourt o& the ,nite 'tates, he rew as sharp a line as
any %urist o& his ti$e between 1law1 an 1politics1--e!en when the politics in 0uestion concerne political econo$y. .n
what is perhaps his $ost celebrate issent, #ol$es castigate the $a%ority in the 19@A case o& -ochner !. 2ew :or* &or
in!aliating a state law setting $a5i$u$ wor*ing hours &or e$ployees in ba*eries on the groun that such a regulation
!iolate the 1&reeo$ o& contract1 that was hel to be i$plicit in the ?ue Process (lause o& the 6ourteenth 3$en$ent.
#ol$es argue that this so-calle 1substanti!e ue process1 octrine was an in!ention esigne to authori<e what was,
in &act, the illegiti$ate %uicial i$position o& a theory o& econo$ic e&&iciency an a $orality o& econo$ic relations on
the people o& the states an the nation. #is clai$ was not that there was anything e&ecti!e in that theoryB on the
contrary, its 1'ocial ?arwinist1 i$ensions hel consierable appeal to hi$. Rather, it was that %uges ha no business
substituting their %ug$ents o& e&&iciency an !alue &or those o& the people/s electe representati!es in (ongress an the
state legislatures. They, he &a$ously sai, shoul be able to go to hell in their own way.
.t is not that any o& this is &latly inconsistent with what #ol$es asserte in The Path o& the -aw. .nee, at one point in
that lecture he see$s to suggest that training in econo$ics an a ue weighing o& consierations o& social a!antage will
ha!e the salutary e&&ect o& encouraging %uicial restraint. 1. cannot but belie!e,1 he eclare, 1that i& the training o&
lawyers le the$ habitually to consier $ore e&initely an e5plicitly the social a!antage on which the rule they lay
own $ust be %usti&ie, they so$eti$es woul hesitate where now they are con&ient, an see that really they were
ta*ing sies upon ebatable an o&ten burning 0uestions.1
C
+ut plainly #ol$es, as a %uge--an, abo!e all, as a issenting %uge--is supposing that the law is so$ething $ore than
$erely a prophecy o& what the courts will in &act ecie. 3s a issenter, he hols that the courts ha!e ecie the case
incorrectly. O& course, he oes not eny that their rulings--e!en where incorrect--ha!e the bining &orce o& law, at least
until they are re!erse by higher courts o& appealB but he oes suppose that the %uges in the $a%ority 1got the law
wrong.1 'o, apparently, %uges in resol!ing isputes shoul be guie, in so$e signi&icant sense, by law. 3n this
presupposes the reality o& law, an inee, the pree5istence o& law, as so$ething $ore than a 1prophec7y8 o& what courts
will o in &act.1
'o we $ust press the 0uestion4 To what stanars o& legal correctness shoul the %uge loo* in reasoning to the
resolution o& a case9 3re the stanars internal to the legal $aterials an isco!erable, by so$e $etho, in the$9 Or are
they e5ternal9 ?o %uges 1&in1 the law9 Or o they, necessarily, 1create1 it9 (an lawyers preict or 1prophesy1 what a
goo an conscientious %uge will o by &iguring out what he shoul o in light o& the legal $aterials that shoul control
his reasoning9 .& that is all #ol$es $eans by 1preiction1 an 1prophecy,1 then his ebun*ing e5ercise is, &or all its
pro!ocati!e language, &ar less s*eptical than it appeare.
?rawing their inspiration &ro$ #ol$es, howe!er, there soon e$erge a group o& legal scholars who were prepare, &or a
while at least, to e5pose the iea o& law to truly raical s*epticis$. The legal realist $o!e$ent, which reache the pea*
o& its in&luence in the 19D@s an /E@s, a!ance the ebun*ing pro%ect well beyon the point at which #ol$es ha le&t
things in The Path o& the -aw. 6eli5 (ohen, Farl -lewellyn, Jero$e 6ran*, an others presse to an e5tre$e the iea o&
%urispruence as an essentially 1preicti!e1 enterprise. 1-aw,1 accoring to -lewellyn, was what 1o&&icials o about
isputes.1 .n accounting &or their ecisions, he insiste, it coul only rarely be true to say that they are guie by rules.
The trouble is not--or not %ust--that %uges an other o&&icials are will&ul, an thus willing to lay asie the clear
co$$an o& legal roles in orer to o as they please. .t is that legal rules are necessarily !ague an susceptible o&
co$peting reasonable interpretations an applications. ;!en the proble$ o& selecting which rule to apply to a gi!en set
o& &acts can only rarely be sol!e by loo*ing to a clear rule o& selection. The result is a $easure o& ineter$inacy that
$a*es nonsense o& the iea o& legal ob%ecti!ity. The *ey to unerstaning the pheno$enon o& law--accounting &or what
%uges an other o&&icials o or preicting what they will o about isputes--is not the analysis o& legal rules. .t $ust be
so$ething else. True,%uges an other o&&icials cite the rules in %usti&ying their ecisions. +ut i& we are to be realistic
about what is going on, accoring to -lewellyn, we $ust recogni<e that this is the $ere legal rationali<ation o& ecisions
reache on other grouns.
6ran*/s realis$ was, i& anything, still $ore e5tre$e in its enial o& legal ob%ecti!ity. Going beyon -lewellyn/s 1rule-
s*epticis$,1 6ran* eclare hi$sel& to be a 1&act-s*eptic1 as well. Thus he enie law/s ob%ecti!ity e!en in the rare
cases in which a clear rule was clearly applicable. 'ince rules $ust be applie to &acts in orer to generate a legal
outco$e, e!erything epens on &inings o& &act in trial courts an other &act-&ining tribunals. 3n &acts are, in $ost
cases, !irtually as ineter$inate as legal rules. .n state$ents that see$ eerily, well, realistic in the a&ter$ath o& the O.J.
'i$pson trial, 6ran* argue that our perceptions o& &acts are eeply in&luence by conscious an subconscious belie&s,
attitues, an pre%uices that !ary a$ong groups an ini!iuals. 'o the *ey to unerstaning law--unerstoo in legal
realist ter$s--is unerstaning people/s belie&s, attitues, an pre%uices, an why they hol the$. 'ince law is a sort o&
epipheno$enon o& hu$an psychology, legal scholarship shoul be irecte to scienti&ic =e.g., psychological> an social
scienti&ic stuies o& hu$an $oti!ation. To be realistic, it shoul abanon the iea that law pree5ists an is a!ailable to
guie legal ecisions.
The legal realists/ insistence on the ineter$inacy o& law woul, in our own ti$e, be reasserte by a!ocates o& 1critical
legal stuies,1 though this ti$e in the ser!ice o& a 1new le&t1 political agena an with nothing li*e the realists/ &aith in
the ob%ecti!ity an e5planatory power o& the natural an social sciences. The realists the$sel!es were, li*e #ol$es,
political progressi!es--$oerate liberals--eager to bring instru$ental rationality to bear to sol!e social proble$s. )any
were 2ew ?ealers. 3 &ew beca$e %uges, an those who i were, li*e #ol$es, &ar less raical in practice than their
theoretical !iews woul ha!e le one to preict. 3lthough appeals to the allege &inings o& social science beca$e an
increasingly co$$on &eature o& %uicial opinions as the twentieth century wore on, realists who beca$e %uges rarely
cite their own sub%ecti!e !iews or pre%uices or psychological preilections as grouns &or their ecisions. Rather, they
cite legal rules as the ulti$ate reasons &or their ecisions an clai$e, at least, to lay asie their own pre&erences in
&ielity to the law. =.nterestingly, in the a&ter$ath o& the re!elation o& 2a<i atrocities in ;urope, 6ran* eclare hi$sel&,
in the Pre&ace to the 'i5th ;ition o& his -aw an the )oern )in, to be a &ollower o& the natural law teaching o& 't.
Tho$as 30uinas on the basic 0uestions o& law an $orality. 2othing in his earlier writings, he insiste, was e!er $eant
to suggest otherwise.>
O& course, realis$ ha its appeal precisely because it was, &ro$ a certain !antage point, realistic. Trial lawyers ta*e
issues o& !enue an !oir ire !ery seriously because they *now--an *new long be&ore the O.J. 'i$pson case--that who
is on the %ury can be critical to whether &acts are &oun &a!orably to their clients. 3n one o& the &irst 0uestions lawyers
at any le!el o& litigation want to *now the answer to is who the %uge or %uges are who will be $a*ing eter$inations
o& law at the trial or on appeal. O&ten enough, i&&erent %urors or a i&&erent %uge or %uges $eans i&&erent results.
(learly, then, the pheno$enon o& law inclues strong ele$ents o& 1sub%ecti!ity.1
+ut the realists o!erstate their case. Their argu$ent &alters uner the sa$e 0uestion we put to #ol$es a little while ago.
6ro$ the point o& !iew o& conscientious %uges, the law is not--&or it cannot be--a preiction o& their own beha!ior.
O&ten they, li*e #ol$es, will be &ace with what they the$sel!es percei!e to be a uty to &ollow rules whose application
generates outco$es that run contrary to their personal pre&erences. True, a will&ul %uge can si$ply gi!e e&&ect to his
pre%uices uner the guise o& applying the law, at least until re!erse by a higher court o& appeal =i& there is one>. +ut
this is no $oern isco!ery. 3n it is no $ore a threat to the possibility o& law/s ob%ecti!ity than is the &act that people
so$eti$es beha!e i$$orally a threat to the ob%ecti!ity o& $orals. Just as a conscientious $an stri!es to con&or$ his
beha!ior to what he %uges to be the stanars o& $oral rectitue, the conscientious %uge stri!es to rule in con&or$ity
with the controlling rules o& law. 3n no account o& the pheno$enon o& law which ignores the sel&-unerstaning o&
such a %uge--no account which, that is to say, lea!es his point o& !iew out o& account--can o %ustice to the &acts.
This, . thin*, was clear to #. -. 3. #art. #e abo!e all other ;nglish-spea*ing %uriical thin*ers in the wa*e o& legal
D
realis$ recogni<e that the shortco$ings o& legal s*epticis$ ha $ainly to o, not with the angers o& its capacity to
uner$ine the public/s &aith in the rule o& law, but rather with realis$/s inability realistically to account &or the
pheno$enon o& law as it &unctions in hu$an societies. Realist theories &aile to &it the &acts. 3n they &aile to &it the
&acts because they approache the pheno$enon o& law &ro$ a purely e5ternal !iewpoint. The proble$, accoring to
#art, was not that legal realists were ba lawyersB it was that they were ba psychologists an social scientists, e!en as
they loo*e to psychology an social science to e5plain the pheno$enon o& law.
'ocial pheno$ena--pheno$ena create or constitute, at least in part, by hu$an %ug$ent, choice, cooperation, etc.--
can ne!er ae0uately be unerstoo, #art argue, without aopting what he calle the 1internal point o& !iew.1 This is
the point o& !iew o& those who o not 1$erely recor an preict beha!ior con&or$ing to rules1 or unerstan legal
re0uire$ents as $ere 1signs o& possible punish$ent,1 but rather 1use the rules as stanars &or the appraisal o& their own
an others/ beha!ior.1
On this score, #art &aulte noB only the legal realists, but also the leaing &igures in his own intellectual traition, the
traition o& analytical %urispruence inspire by Tho$as #obbes an e!elope by Jere$y +entha$ an his isciple
John 3ustin. The proble$ with their %urispruential theories, #art obser!e, is that they too &ail to &it the &acts. 3n they
&ail to &it the &acts because they o not ta*e into account the practical reasoning o& people whose choices an actions
create an constitute the pheno$enon o& law--people &or who$ legal rules &unction as reasons &or ecisions an actions.
#art in no way enie the wie !ariability o& legal rules. +eyon so$e basic re0uire$ents o& any legal syste$--what
#art calle the 1$ini$u$ content o& natural law1--there is a great eal o& !ariation &ro$ legal syste$ to legal syste$.
+ut in all societies that ha!e achie!e a legal orer--that is, $o!e &ro$ a prelegal orer to a regi$e o& law--law
e5hibits a certain ob%ecti!ity an autono$y &ro$ other pheno$ena, incluing other nor$ati!e syste$s. 3n the law o&
any syste$ is not truly unerstoo by the theorist until he unerstans the practical point o& the law &ro$ the perspecti!e
o& actors within the syste$ who unerstan the$sel!es to be $a*ing laws &or reasons an acting on reasons pro!ie by
the laws.
.n his $asterwor*, The (oncept o& -aw, #art in!ite his reaers to treat his analysis as 1an essay in escripti!e
sociology.1 +ut his was a sociology esigne to $a*e possible the unerstaning o& legal syste$s 1&ro$ the insie.1 'o
what he propose, an what the traition o& analytical %urispruence has now $ore or less &ully accepte as #art/s $ost
enuring contribution, is that e!en 1the escripti!e theorist =whose purposes are not practical> $ust procee ... by
aopting a practical point o& !iew.... 7#e $ust8 assess i$portance or signi&icance in si$ilarities an i&&erences within
his sub%ect $atter by as*ing what woul be consiere i$portant or signi&icant in that &iel by those whose concerns,
ecisions, an acti!ities create or constitute the sub%ect $atter.1
.& #art re%ecte the e5ternalis$ o& +entha$ an 3ustin--with its unerstaning o& law =in #obbesian &ashion> as
constitute by co$$ans o& a so!ereign =1orers bac*e by threats1> who is habitually obeye by a populace but who in
turn obeys no one--he retaine their co$$it$ent to 1legal positi!is$.1 #e escribe this $uch-$isunerstoo
co$$it$ent as the ac*nowleg$ent o& a 1conceptual separation1 o& law an $orals. 3lthough he was yet another
$oerate liberal in his politics, #art i not $ean by 1positi!is$1 the iea that law ought not to e$boy or en&orce
$oral %ug$ents. True, in his &a$ous ebate with Patric* ?e!lin o!er the legal en&orce$ent o& $orals, #art e&ene a
$oi&ie !ersion o& J. '. )ill/s 1har$ principle1 as the appropriate nor$ &or istinguishing legiti$ate &ro$ illegiti$ate
state en&orce$ent o& $oralityB but he &ully recogni<e that this principle itsel& was propose as a nor$ o& political
$orality to be e$boie in, an respecte by, the law. )oreo!er, he unerstoo per&ectly well that the content o& legal
rules re&lecte nothing so $uch as the $oral %ug$ents pre!ailing in any society regaring the sub%ect $atters regulate
by law. 'o #art cheer&ully ac*nowlege the $any respects in which law an $orality were connecte, both
nor$ati!ely an escripti!ely. .n what respect, then, i he insist on their 1conceptual separation19
3s . rea The (oncept o& -aw, as well as #art/s later writings, the 1conceptual separation1 thesis see$s rather $oest. .t
has to o abo!e all, . thin*, with the legiti$ate aspiration o& the escripti!e sociologist to *eep his escriptions, to the
e5tent possible, &ree o& coloration by his own nor$ati!e $oral !iews. One can recogni<e a law, or e!en a whole legal
syste$, as a law or legal syste$, irrespecti!e o& whether one belie!es that that law or legal syste$ is %ustB inee, e!en a
gra!ely un%ust legal syste$ can be, &ro$ a $eaning&ul escripti!e !iewpoint, a legal syste$. 3n what is true o& the
escripti!e sociologist or legal theorist can also be true o& the %uge who $ay conclue in a gi!en case that the law--
ienti&ie by authoritati!e criteria or stanars o& legality--pro!ies a rule o& ecision in the case at han which is, &ro$
the $oral point o& !iew, e&ecti!e. .n repuiating what he too*--wrongly, in $y !iew--to be the e&ining proposition o&
the natural law theorist, #art enie in an unnecessarily wholesale &ashion the proposition le5 iniusta non est le5 =an
un%ust law is not law>.
3lthough his !iews in &una$ental $oral theory are &rustratingly elusi!e, nothing in #art/s positi!is$ co$$its hi$ in
any way to the $oral s*epticis$, sub%ecti!is$, or relati!is$ characteristic o& the positi!is$ o&, say, #ans Felsen or that
one etects in the e5tra%uicial writings o& Oli!er "enell #ol$es. .n &act, the stuent o& #art/s who has re$aine
closest to his !iews in legal theory, Joseph Ra<, co$bines #artian legal positi!is$ with a robust $oral realis$. #art an
Ra< ha!e both insiste--rightly, in $y !iew--on the necessity o& so$e conceptual separation o& law an $orality &or the
sa*e o& preser!ing the possibility o& $oral criticis$ o& law. 3s John 6innis has recently obser!e, the necessary
separation 1is e&&ortlessly establishe 7by 30uinas8 in the 'u$$a 7by8 ta*ing hu$an positi!e law as a sub%ect &or
consieration in its own right =an its own na$e>, a topic reaily ienti&iable an ienti&ie prior to any 0uestion about
its relation to $orality.1
2e!ertheless, #art/s positi!is$ generate one o& the century/s $ost &ruit&ul %urispruential ebates when it was
challenge by -on -. 6uller in the late 19A@s. 6uller--whose care&ul e5plication an wor*ing out o& the i!erse ele$ents
o& the 3ristotelian ieal o& the Rule o& -aw constitutes a genuine achie!e$ent o& twentieth-century legal philosophy--
propose an argu$ent to show that law an $orality are, as a $atter o& brute &act, $ore tightly connecte than #art/s
positi!is$ woul allow. #e sought to show that law necessarily e$boies an 1internal $orality1 that e&ies #art/s
1conceptual separation1 thesis. #e o&&ere to argue the point, not as a nor$ati!e $atter about $oral stanars that
positi!e law ought to $eet, but rather on #art/s own ter$s, as a escripti!e proposition about $oral stanars that law
has to e$boy be&ore e!en the purely escripti!e theorist can recogni<e it as law.
E
.n The )orality o& -aw, 6uller o&&ere an apparently 1!alue &ree1 e&inition o& law that any legal positi!ist ought to be
able to accept4 1-aw is the enterprise o& sub%ecting o& hu$an beha!ior to the go!ernance o& nor$s.1 2othing in this
e&inition e$ans that those who $a*e an en&orce the laws be wise, !irtuous, benign, or concerne in any way &or the
co$$on goo. 'till, so$e things &ollow &ro$ it. 6or e5a$ple, people cannot con&or$ their beha!ior to rules that ha!e
not been pro$ulgate, or that lac* at least so$e $easure o& clarity, or that apply retrospecti!ely. 'o pro$ulgation,
clarity, an prospecti!ity are aspects o& the Rule o& -aw. "here they are absent, no legal syste$ e5ists or, at $ost, only
a highly e&ecti!e legal syste$ e5ists. 3n there are other re0uire$ents, incluing so$e signi&icant $easure o& reliable
con&or$ity o& o&&icial action with state rules. Ta*en together, 6uller argue, the Rule o& -aw constitutes a $oral
achie!e$ent.
"hile aherence to the Rule o& -aw oes not guarantee that a legal syste$ will be per&ectly %ust--in &act, all legal
syste$s contain ele$ents o& in%ustice--it oes $ean that a certain $ini$u$ set o& $oral stanars $ust be $et be&ore a
legal syste$ actually e5ists. 3n, sure enough, or so 6uller suppose, gra!e in%ustice is rarely &oun in syste$s in which
the rulers--whate!er their personal !ices an ba $oti!es--go!ern by law. .t is in societies in which the Rule o& -aw is
absent that the $ost serious in%ustices occur. O& course, #art wasn/t buying this &or a $o$ent. "hile he a$ire an &or
the $ost part accepte 6uller/s brilliant e5plication o& the Rule o& -aw, he saw no reason to re&er to its content as an
internal $orality. #e contene, $oreo!er, that there is no warrant &or supposing that a syste$ o& law coul not be
gra!ely un%ust, or that the Rule o& -aw pro!ie any !ery substantial bulwar* against gra!e in%ustice. .nee, Ra< later
argue against 6uller that the Rule o& -aw was analogous to a sharp *ni&e--!aluable &or goo purposes, to be sure, but
e0ually use&ul to rulers in the pursuit o& e!il ob%ecti!es.
The #artG6uller ebate =li*e the #artG?e!lin ebate> was an illu$inating one. . count on it e!ery year &or one or two
li!ely $eetings o& $y se$inar in Philosophy o& -aw at Princeton. )y own %ug$ent is that 6uller score a power&ul
point in establishing a certain $oral !alue o& the Rule o& -aw, but that #art rightly resiste 6uller/s so$ewhat
e5aggerate $oral clai$s on its behal&. .n any e!ent, . o not thin* that 6uller uner$ine the central appeal o& the
1conceptual separation1 thesis4 the $ethoological aspiration to a!oi con&using 1law as it is1 with 1law as it ought to
be.1
6or #art, the 0uestion o& how $uch law-creating =or 1legislati!e1> authority a %uge has, i& any, or where that authority
obtains, is not to be resol!e at the le!el o& general %urispruence. -egal syste$s i&&er--inee, reasonably i&&er--on
the 0uestion o& how such law$a*ing authority is to be allocate a$ong %uges an other actors in the o!erall political
syste$. To be sure, #art obser!es that legal rules are ine!itably 1open te5ture1 an, thus, in nee o& authoritati!e
interpretation in their concrete applicationB an this entails a certain $easure o& %uicial iscretion an law-$a*ing
authority as a $atter o& &act, e!en in those syste$s which e5clue it in theory. This $eans that the wall between legal
!aliity an the $oral %ug$ent o& %uges is porous, e!en in syste$s =such as the +ritish one> o& a!owe legislati!e
supre$acy. #art/s legal positi!is$ is, in &act, co$pletely co$patible with the recognition that %uges in so$e legal
syste$s are in!ite or e!en boun uner the positi!e law o& the constitution to bring $oral %ug$ent to bear in eciing
cases at law. #art/s is not a theory esigne to show %uges how they can resol!e cases without $a*ing $oral
%ug$ents, though neither is it a theory o&&ering to %usti&y their oing so. The theory si$ply isn/t aresse to such
0uestions.
"hat . thin* #art is to be &aulte &or is a &ailure to see an e!elop &ully the i$plications o& his own re&utation o&
+entha$ite an 3ustinian positi!is$ an o& his aoption o& the internal point o& !iew. ='o$e o& these i$plications are
ac*nowlege by Ra< in his recent wor*.> The central or &ocal case o& a legal syste$, to borrow a principle o& 3ristotle/s
$etho in social stuy, is one in which legal rules an principles &unction as practical reasons &or citi<ens, as well as
%uges an other o&&icials, because the citi<ens appreciate their $oral !alue.
:et #art hi$sel&, in The (oncept o& -aw an elsewhere, ecline to istinguish central &ro$ peripheral cases o& the
internal point o& !iew itsel&. Thus, he treate cases o& obeience to law by !irtue o& 1unre&lecting inherite attitues1 an
e!en the 1$ere wish to o as others o1 no i&&erently &ro$ $orally $oti!ate obeience o& &ielity to law. These
1consierations an attitues,1 li*e those which boil own to $ere sel&-interest or the a!oiance o& punish$ent, are, as
6innis says, 1ilute or watere-own instances o& the practical !iewpoint that brings law into being as a signi&icantly
i&&erentiate type o& social orer an $aintains it as such. .nee, they are parasitic upon that !iewpoint.1
This is in no way to eny any !ali sense to the positi!ist insistence on the 1conceptual separation1 o& law an $orality.
.t is $erely to highlight the a$biguity o& the assertion o& such a separation an the nee to istinguish, e!en $ore
clearly than #art i, between the respects in which such a separation obtains an those in which it oes not. 'till less is
it to suggest that belie& in natural law or other &or$s o& $oral realis$ entails the proposition that law an $orality are
connecte in such a way as to con&er upon %uges as such a $easure o& plenary authority to en&orce the re0uire$ents o&
natural law or to legally in!aliate pro!isions o& positi!e law they %uge to be in con&lict with these re0uire$ents.
.$portant wor* by 6innis an others has clearly ienti&ie the $isguieness o& such a suggestion. The truth o& the
proposition le5 iniusta non est le5 is a $oral truth, na$ely, that the $oral obligation create by authoritati!e legal
enact$ent--that is to say, by positi!e law--is conitional rather than absoluteB our pri$a &acie obligation to obey the law
a$its o& e5ceptions.
"hat about law/s ob%ecti!ity9 ?oes law 1e5ist1 prior to legal ecision9 (an %uicial reasoning be guie by stanars
internal to the legal $aterials9 3t the awn o& the twenty-&irst century we can, . thin*, a&&ir$ a position $ore subtle than
the one #ol$es asserte at the en o& the nineteenth. :es, the stanars to guie %uicial reasoning can be internal to the
law o& a syste$ that see*s to $a*e the$ so, though ne!er per&ectly. Positi!e law is a hu$an creation--a cultural
arti&act--though it is largely create &or $oral purposes, &or the sa*e o& %ustice an the co$$on goo. That is to say, law
e5ists in what 3ristotelians woul call the orer o& techni0ue, but it is create in that orer precisely &or the sa*e o&
purposes that obtain in the $oral orer. 'o, &or $oral reasons, we hu$an beings create nor$ati!e syste$s o&
en&orceable social rules that en%oy, to a signi&icant e5tent, a *in o& autono$y &ro$ $orality as such. "e eliberately
rener these rules susceptible to technical application an analysis &or purposes o&, &or e5a$ple, &airly an &inally
establishing li$its on &reeo$ o& conuct, as well as resol!ing isputes a$ong citi<ens, or between citi<ens an
go!ern$ents, or between go!ern$ents at i&&erent le!els. 3n to &acilitate this application an analysis we bring into
A
being a legal pro&ession, &ro$ which we raw our %uges, that is co$pose o& people traine in progra$s o& stuy that
teach not, or not %ust, $oral philosophy, but the speci&ic tools an techni0ues o& research, interpretation, reasoning, an
argu$ent rele!ant to legal analysis.
To stress law/s ob%ecti!ity an relati!e autono$y &ro$ $orality is by no $eans to eny the Tho$istic proposition that
%ust positi!e law is eri!e &ro$ the natural law. 6or Tho$as hi$sel& i not suppose that positi!e law was anything
other than a cultural arti&act, a hu$an creation, albeit a creation o& great $oral worth brought into being largely &or
$oral purposes. 2or i he suppose that a single &or$ or regi$e o& law was uni0uely correct &or all ti$es an places.
#is stress on eter$inationes by which hu$an law$a*ers gi!e e&&ect to the re0uire$ents o& natural law in the shape o&
positi!e law &or the co$$on goo o& his co$$unity--en%oying, to a consierable e5tent, the creati!e &reeo$ 30uinas
analogi<e to that o& the architect--re!eals his awareness o& the legiti$ate !ariability o& hu$an laws. "ho$e!er #ol$es
$ay ha!e ha in $in in critici<ing those 1te5t writers1 who saw law as a set o& euctions &ro$ a &ew a5io$s o&
reason, the charge oes not apply to 30uinas. .n this, as in so $any other respects, the 3ngelic ?octor was a $an o& the
twentieth century an--i& . $ay engage in a bit o& preiction an prophecy $ysel&--o& the twenty-&irst an beyon.
RO+;RT P. G;ORG; is )c(or$ic* Pro&essor o& Jurispruence an ?irector o& the Ja$es )aison Progra$ in
3$erican .eals an .nstitutions at Princeton ,ni!ersity.
-1-
Huestia )eia 3$erica, .nc. www.questia.com
Publication Information: 3rticle Title4 "hat .s -aw9 3 (entury o& 3rgu$ents. (ontributors4 Robert P. George - author. )aga<ine Title4 6irst
Things4 3 )onthly Journal o& Religion an Public -i&e. Publication ?ate4 3pril C@@1. Page 2u$ber4 CD. (OP:R.G#T C@@1 .nstitute on Religion an
Public -i&eB (OP:R.G#T C@@C Gale Group
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