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The term "natural law" is ambiguous. It refers to a type of moral theory, as well as to a
type of legal theory, but the core claims of the two kinds of theory are logically
independent. It does not refer to the laws of nature, the laws that science aims to
describe. According to natural law moral theory, the moral standards that govern
human behavior are, in some sense, objectively derived from the nature of human
beings and the nature of the world. While being logically independent of natural law
legal theory, the two theories intersect. However, the majority of the article will focus on
natural law legal theory.
According to natural law legal theory, the authority of legal standards necessarily
derives, at least in part, from considerations having to do with the moral merit of those
standards. There are a number of different kinds of natural law legal theories, differing
from each other with respect to the role that morality plays in determining the authority
of legal norms. The conceptual jurisprudence of John Austin provides a set of necessary
and sufficient conditions for the existence of law that distinguishes law from non-law in
every possible world. Classical natural law theory such as the theory of Thomas
Aquinas focuses on the overlap between natural law moral and legal theories.
Similarly, the neo-naturalism of John Finnis is a development of classical natural law
theory. In contrast, the procedural naturalism of Lon L. Fuller is a rejection of the
conceptual naturalist idea that there are necessary substantive moral constraints on
the content of law. Lastly, Ronald Dworkins theory is a response and critique of legal
positivism. All of these theories subscribe to one or more basic tenets of natural law
legal theory and are important to its development and influence.
Table of Contents
1. Two Kinds of Natural Law Theory
2. Conceptual Naturalism
a. The Project of Conceptual Jurisprudence
b. Classical Natural Law Theory
2. The Substantive Neo-Naturalism of John Finnis
3. The Procedural Naturalism of Lon L. Fuller
4. Ronald Dworkin's "Third Theory"
As an empirical matter, many natural law moral theorists are also natural law legal
theorists, but the two theories, strictly speaking, are logically independent. One can
deny natural law theory of law but hold a natural law theory of morality. John Austin,
the most influential of the early legal positivists, for example, denied the Overlap Thesis
but held something that resembles a natural law ethical theory.
Indeed, Austin explicitly endorsed the view that it is not necessarily true that the legal
validity of a norm depends on whether its content conforms to morality. But while
Austin thus denied the Overlap Thesis, he accepted an objectivist moral theory; indeed,
Austin inherited his utilitarianism almost wholesale from J.S. Mill and Jeremy
Bentham. Here it is worth noting that utilitarians sometimes seem to suggest that they
derive their utilitarianism from certain facts about human nature; as Bentham once
wrote, "nature has placed mankind under the governance of two sovereign masters, pain
and pleasure. It is for them alone to point out what we ought to do, as well as to
determine what we shall do. On the one hand the standard of right and wrong, on the
other the chain of causes and effects, are fastened to their throne" (Bentham 1948, 1).
Thus, a commitment to natural law theory of morality is consistent with the denial of
natural law theory of law.
Conversely, one could, though this would be unusual, accept a natural law theory of law
without holding a natural law theory of morality. One could, for example, hold that the
conceptual point of law is, in part, to reproduce the demands of morality, but also hold a
form of ethical subjectivism (or relativism). On this peculiar view, the conceptual point
of law would be to enforce those standards that are morally valid in virtue of cultural
consensus. For this reason, natural law theory of law is logically independent of natural
law theory of morality. The remainder of this essay will be exclusively concerned with
natural law theories of law.
2. Conceptual Naturalism
a. The Project of Conceptual Jurisprudence
The principal objective of conceptual (or analytic) jurisprudence has traditionally been
to provide an account of what distinguishes law as a system of norms from other
systems of norms, such as ethical norms. As John Austin describes the project,
conceptual jurisprudence seeks "the essence or nature which is common to all laws that
are properly so called" (Austin 1995, 11). Accordingly, the task of conceptual
jurisprudence is to provide a set of necessary and sufficient conditions for the existence
of law that distinguishes law from non-law in every possible world.
While this task is usually interpreted as an attempt to analyze the concepts of law and
legal system, there is some confusion as to both the value and character of conceptual
analysis in philosophy of law. As Brian Leiter (1998) points out, philosophy of law is one
of the few philosophical disciplines that takes conceptual analysis as its principal
concern; most other areas in philosophy have taken a naturalistic turn, incorporating
the tools and methods of the sciences. To clarify the role of conceptual analysis in law,
Brian Bix (1995) distinguishes a number of different purposes that can be served by
conceptual claims: (1) to track linguistic usage; (2) to stipulate meanings; (3) to explain
what is important or essential about a class of objects; and (4) to establish an evaluative
test for the concept-word. Bix takes conceptual analysis in law to be primarily concerned
with (3) and (4).
In any event, conceptual analysis of law remains an important, if controversial, project
in contemporary legal theory. Conceptual theories of law have traditionally been
characterized in terms of their posture towards the Overlap Thesis. Thus, conceptual
theories of law have traditionally been divided into two main categories: those like
natural law legal theory that affirm there is a conceptual relation between law and
morality and those like legal positivism that deny such a relation.
law is concerned with those standards that must be satisfied by a human being to
achieve eternal salvation. One cannot discover divine law by natural reason alone; the
precepts of divine law are disclosed only through divine revelation.
The natural law is comprised of those precepts of the eternal law that govern the
behavior of beings possessing reason and free will. The first precept of the natural law,
according to Aquinas, is the somewhat vacuous imperative to do good and avoid evil.
Here it is worth noting that Aquinas holds a natural law theory of morality: what is good
and evil, according to Aquinas, is derived from the rational nature of human beings.
Good and evil are thus both objective and universal.
But Aquinas is also a natural law legal theorist. On his view, a human law (that is, that
which is promulgated by human beings) is valid only insofar as its content conforms to
the content of the natural law; as Aquinas puts the point: "[E]very human law has just so
much of the nature of law as is derived from the law of nature. But if in any point it
deflects from the law of nature, it is no longer a law but a perversion of law" (ST I-II,
Q.95, A.II). To paraphrase Augustine's famous remark, an unjust law is really no law at
all.
The idea that a norm that does not conform to the natural law cannot be legally valid is
the defining thesis of conceptual naturalism. As William Blackstone describes the thesis,
"This law of nature, being co-eval 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" (1979, 41). In this passage, Blackstone articulates the
two claims that constitute the theoretical core of conceptual naturalism: 1) there can be
no legally valid standards that conflict with the natural law; and 2) all valid laws derive
what force and authority they have from the natural law.
It should be noted that classical naturalism is consistent with allowing a substantial role
to human beings in the manufacture of law. While the classical naturalist seems
committed to the claim that the law necessarily incorporates all moral principles, this
claim does not imply that the law is exhausted by the set of moral principles. There will
still be coordination problems (e.g., which side of the road to drive on) that can be
resolved in any number of ways consistent with the set of moral principles. Thus, the
classical naturalist does not deny that human beings have considerable discretion in
creating natural law. Rather she claims only that such discretion is necessarily limited
by moral norms: legal norms that are promulgated by human beings are valid only if
they are consistent with morality.
Critics of conceptual naturalism have raised a number of objections to this view. First, it
has often been pointed out that, contra Augustine, unjust laws are all-too- frequently
enforced against persons. As Austin petulantly put the point:
Now, to say that human laws which conflict with the Divine law are not
binding, that is to say, are not laws, is to talk stark nonsense. The most
pernicious laws, and therefore those which are most opposed to the will of
God, have been and are continually enforced as laws by judicial tribunals.
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, who has commanded that human lawgivers shall not prohibit acts which
have no evil consequences, 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 (Austin 1995, 158).
Of course, as Brian Bix (1999) points out, the argument does little work for Austin
because it is always possible for a court to enforce a law against a person that does not
satisfy Austin's own theory of legal validity.
Another frequently expressed worry is that conceptual naturalism undermines the
possibility of moral criticism of the law; inasmuch as conformity with natural law is a
necessary condition for legal validity, all valid law is, by definition, morally just. Thus,
on this line of reasoning, the legal validity of a norm necessarily entails its moral justice.
As Jules Coleman and Jeffrey Murphy (1990, 18) put the point:
The important things [conceptual naturalism] supposedly allows us to do
(e.g., morally evaluate the law and determine our moral obligations with
respect to the law) are actually rendered more difficult by its collapse of the
distinction between morality and law. If we really want to think about the law
from the moral point of view, it may obscure the task if we see law and
morality as essentially linked in some way. Moral criticism and reform of law
may be aided by an initial moral skepticism about the law.
There are a couple of problems with this line of objection. First, conceptual naturalism
does not foreclose criticism of those norms that are being enforced by a society as law.
Insofar as it can plausibly be claimed that the content of a norm being enforced by
society as law does not conform to the natural law, this is a legitimate ground of moral
criticism: given that the norm being enforced by law is unjust, it follows, according to
conceptual naturalism, that it is not legally valid. Thus, the state commits wrong by
enforcing that norm against private citizens.
Second, and more importantly, this line of objection seeks to criticize a conceptual
theory of law by pointing to its practical implications a strategy that seems to commit
a category mistake. Conceptual jurisprudence assumes the existence of a core of social
practices (constituting law) that requires a conceptual explanation. The project
motivating conceptual jurisprudence, then, is to articulate the concept of law in a way
that accounts for these pre-existing social practices. A conceptual theory of law can
legitimately be criticized for its failure to adequately account for the pre-existing data, as
it were; but it cannot legitimately be criticized for either its normative quality or its
practical implications.
A more interesting line of argument has recently been taken up by Brian Bix (1996).
Following John Finnis (1980), Bix rejects the interpretation of Aquinas and Blackstone
as conceptual naturalists, arguing instead that the claim that an unjust law is not a law
should not be taken literally:
A more reasonable interpretation of statements like "an unjust law is no law
at all" is that unjust laws are not laws "in the fullest sense." As we might say
of some professional, who had the necessary degrees and credentials, but
seemed nonetheless to lack the necessary ability or judgment: "she's no
lawyer" or "he's no doctor." This only indicates that we do not think that the
title in this case carries with it all the implications it usually does. Similarly,
to say that an unjust law is "not really law" may only be to point out that it
does not carry the same moral force or offer the same reasons for action as
laws consistent with "higher law" (Bix 1996, 226).
Thus, Bix construes Aquinas and Blackstone as having views more similar to the neonaturalism of John Finnis discussed below in Section III. Nevertheless, while a plausible
case can be made in favor of Bix's view, the long history of construing Aquinas and
Blackstone as conceptual naturalists, along with its pedagogical value in developing
other theories of law, ensures that this practice is likely, for better or worse, to continue
indefinitely.
view, human activity is necessarily goal-oriented or purposive in the sense that people
engage in a particular activity because it helps them to achieve some end. Insofar as
human activity is essentially purposive, according to Fuller, particular human activities
can be understood only in terms that make reference to their purposes and ends. Thus,
since lawmaking is essentially purposive activity, it can be understood only in terms that
explicitly acknowledge its essential values and purposes:
The only formula that might be called a definition of law offered in these
writings is by now thoroughly familiar: law is the enterprise of subjecting
human conduct to the governance of rules. Unlike most modern theories of
law, this view treats law as an activity and regards a legal system as the
product of a sustained purposive effort (Fuller 1964, 106).
To the extent that a definition of law can be given, then, it must include the idea that
law's essential function is to "achiev[e] [social] order through subjecting people's
conduct to the guidance of general rules by which they may themselves orient their
behavior" (Fuller 1965, 657).
Fuller's functionalist conception of law implies that nothing can count as law unless it is
capable of performing law's essential function of guiding behavior. And to be capable of
performing this function, a system of rules must satisfy the following principles:
(P1)
(P2)
(P3)
(P4)
(P5)
(P6)
affected parties;
(P7) the rules must not be changed so frequently that the subject
cannot rely on them; and
(P8) the rules must be administered in a manner consistent with their
wording.
On Fuller's view, no system of rules that fails minimally to satisfy these principles of
legality can achieve law's essential purpose of achieving social order through the use of
rules that guide behavior. A system of rules that fails to satisfy (P2) or (P4), for example,
cannot guide behavior because people will not be able to determine what the rules
require. Accordingly, Fuller concludes that his eight principles are "internal" to law in
the sense that they are built into the existence conditions for law.
These internal principles constitute a morality, according to Fuller, because law
necessarily has positive moral value in two respects: (1) law conduces to a state of social
order and (2) does so by respecting human autonomy because rules guide behavior.
Since no system of rules can achieve these morally valuable objectives without
minimally complying with the principles of legality, it follows, on Fuller's view, that they
constitute a morality. Since these moral principles are built into the existence conditions
for law, they are internal and hence represent a conceptual connection between law and
morality. Thus, like the classical naturalists and unlike Finnis, Fuller subscribes to the
strongest form of the Overlap Thesis, which makes him a conceptual naturalist.
Nevertheless, Fuller's conceptual naturalism is fundamentally different from that of
classical naturalism. First, Fuller rejects the classical naturalist view that there are
necessary moral constraints on the content of law, holding instead that there are
necessary moral constraints on the procedural mechanisms by which law is made and
administered: "What I have called the internal morality of law is ... a procedural version
of natural law ... [in the sense that it is] concerned, not with the substantive aims of legal
rules, but with the ways in which a system of rules for governing human conduct must
be constructed and administered if it is to be efficacious and at the same time remain
what it purports to be" (Fuller 1964, 96- 97).
Second, Fuller identifies the conceptual connection between law and morality at a
higher level of abstraction than the classical naturalists. The classical naturalists view
morality as providing substantive constraints on the content of individual laws; an
unjust norm, on this view, is conceptually disqualified from being legally valid. In
contrast, Fuller views morality as providing a constraint on the existence of a legal
system: "A total failure in any one of these eight directions does not simply result in a
bad system of law; it results in something that is not properly called a legal system at all"
(Fuller 1964, 39).
Fuller's procedural naturalism is vulnerable to a number of objections. H.L.A. Hart, for
example, denies Fuller's claim that the principles of legality constitute an internal
morality; according to Hart, Fuller confuses the notions of morality and efficacy:
law, it is because they operate as efficacy conditions and not because they function as
moral ideals.
Ronald Dworkin's so-called third theory of law is best understood as a response to legal
positivism, which is essentially constituted by three theoretical commitments: the Social
Fact Thesis, the Conventionality Thesis, and the Separability Thesis. The Social Fact
Thesis asserts it is a necessary truth that legal validity is ultimately a function of certain
kinds of social facts; the idea here is that what ultimately explains the validity of a law is
the presence of certain social facts, especially formal promulgation by a legislature.
The Conventionality Thesis emphasizes law's conventional nature, claiming that the
social facts giving rise to legal validity are authoritative in virtue of a social convention.
On this view, the criteria that determine whether or not any given norm counts as a legal
norm are binding because of an implicit or explicit agreement among officials. Thus, for
example, the U.S. Constitution is authoritative in virtue of the conventional fact that it
was formally ratified by all fifty states.
The Separability Thesis, at the most general level, simply denies naturalism's Overlap
Thesis; according to the Separability Thesis, there is no conceptual overlap between the
notions of law and morality. As Hart more narrowly construes it, the Separability Thesis
is "just the simple contention that it is in no sense a necessary truth that laws reproduce
or satisfy certain demands of morality, though in fact they have often done so" (Hart
1994, 185-186).
Dworkin rejects positivism's Social Fact Thesis on the ground that there are some legal
standards the authority of which cannot be explained in terms of social facts. In deciding
hard cases, for example, judges often invoke moral principles that Dworkin believes do
not derive their legalauthority from the social criteria of legality contained in a rule of
recognition (Dworkin 1977, p. 40).
In Riggs v. Palmer, for example, the court considered the question of whether a
murderer could take under the will of his victim. At the time the case was decided,
neither the statutes nor the case law governing wills expressly prohibited a murderer
from taking under his victim's will. Despite this, the court declined to award the
defendant his gift under the will on the ground that it would be wrong to allow him to
profit from such a grievous wrong. On Dworkin's view, the court decided the case by
citing "the principle that no man may profit from his own wrong as a background
standard against which to read the statute of wills and in this way justified a new
interpretation of that statute" (Dworkin 1977, 29).
On Dworkin's view, the Riggs court was not just reaching beyond the law to extralegal
standards when it considered this principle. For the Riggs judges would "rightfully"
have been criticized had they failed to consider this principle; if it were merely an
extralegal standard, there would be no rightful grounds to criticize a failure to consider
it (Dworkin 1977, 35). Accordingly, Dworkin concludes that the best explanation for the
propriety of such criticism is that principles are part of the law.
Further, Dworkin maintains that the legal authority of standards like
the Riggs principle cannot derive from promulgation in accordance with purely formal
requirements: "[e]ven though principles draw support from the official acts of legal
institutions, they do not have a simple or direct enough connection with these acts to
frame that connection in terms of criteria specified by some ultimate master rule of
recognition" (Dworkin 1977, 41).
On Dworkin's view, the legal authority of the Riggs principle can be explained wholly in
terms of its content. The Riggs principle was binding, in part, because it is a
requirement of fundamental fairness that figures into the best moral justification for a
society's legal practices considered as a whole. A moral principle is legally authoritative,
according to Dworkin, insofar as it maximally conduces to the best moral justification
for a society's legal practices considered as a whole.
Dworkin believes that a legal principle maximally contributes to such a justification if
and only if it satisfies two conditions: (1) the principle coheres with existing legal
materials; and (2) the principle is the most morally attractive standard that satisfies (1).
The correct legal principle is the one that makes the law the moral best it can be.
Accordingly, on Dworkin's view, adjudication is and should be interpretive:
[J]udges should decide hard cases by interpreting the political structure of
their community in the following, perhaps special way: by trying to find the
best justification they can find, in principles of political morality, for the
structure as a whole, from the most profound constitutional rules and
arrangements to the details of, for example, the private law of tort or
contract (Dworkin 1982, 165).
There are, thus, two elements of a successful interpretation. First, since an
interpretation is successful insofar as it justifies the particular practices of a particular
society, the interpretation must fit with those practices in the sense that it coheres with
existing legal materials defining the practices. Second, since an interpretation provides
a moral justification for those practices, it must present them in the best possible
moral light.
For this reason, Dworkin argues that a judge should strive to interpret a case in roughly
the following way:
A thoughtful judge might establish for himself, for example, a rough
"threshold" of fit which any interpretation of data must meet in order to be
"acceptable" on the dimension of fit, and then suppose that if more than one
interpretation of some part of the law meets this threshold, the choice
among these should be made, not through further and more precise
comparisons between the two along that dimension, but by choosing the
interpretation which is "substantively" better, that is, which better promotes
the political ideals he thinks correct (Dworkin 1982, 171).
As Dworkin conceives it, then, the judge must approach judicial decision-making as
something that resembles an exercise in moral philosophy. Thus, for example, the judge
must decide cases on the basis of those moral principles that "figure[] in the soundest
theory of law that can be provided as a justification for the explicit substantive and
institutional rules of the jurisdiction in question" (Dworkin 1977, 66).
And this is a process, according to Dworkin, that "must carry the lawyer very deep into
political and moral theory." Indeed, in later writings, Dworkin goes so far as to claim,
somewhat implausibly, that "any judge's opinion is itself a piece of legal philosophy,
even when the philosophy is hidden and the visible argument is dominated by citation
and lists of facts" (Dworkin 1986, 90).
Dworkin believes his theory of judicial obligation is a consequence of what he calls the
Rights Thesis, according to which judicial decisions always enforce pre-existing rights:
"even when no settled rule disposes of the case, one party may nevertheless have a right
to win. It remains the judge's duty, even in hard cases, to discover what the rights of the
parties are, not to invent new rights retrospectively" (Dworkin 1977, 81).
In "Hard Cases," Dworkin distinguishes between two kinds of legal argument.
Arguments of policy "justify a political decision by showing that the decision advances
or protects some collective goal of the community as a whole" (Dworkin 1977, 82). In
contrast, arguments of principle "justify a political decision by showing that the decision
respects or secures some individual or group right" (Dworkin 1977, 82).
On Dworkin's view, while the legislature may legitimately enact laws that are justified by
arguments of policy, courts may not pursue such arguments in deciding cases. For a
consequentialist argument of policy can never provide an adequate justification for
deciding in favor of one party's claim of right and against another party's claim of right.
An appeal to a pre-existing right, according to Dworkin, can ultimately be justified only
by an argument of principle. Thus, insofar as judicial decisions necessarily adjudicate
claims of right, they must ultimately be based on the moral principles that figure into
the best justification of the legal practices considered as a whole.
Notice that Dworkin's views on legal principles and judicial obligation are inconsistent
with all three of legal positivism's core commitments. Each contradicts the
Conventionality Thesis insofar as judges are bound to interpret posited law in light of
unposited moral principles. Each contradicts the Social Fact Thesis because these moral
principles count as part of a community's law regardless of whether they have been
formally promulgated. Most importantly, Dworkin's view contradicts the Separability
Thesis in that it seems to imply that some norms are necessarily valid in virtue of their
moral content. It is his denial of the Separability Thesis that places Dworkin in the
naturalist camp.
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Author Information
Kenneth
Email: himma@spu.edu
Seattle
U. S. A.
Einar
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Himma
University