Natural Law
The term ‘natural law’ is ambiguous. It refers to a type of moral theory, as
well as to a type of legal theory, despite the fact that the core claims of the
two kinds of theory are logically independent. According to natural law ethical
theory, the moral standards that govern human behavior are, in some sense,
objectively derived from the nature of human beings. According to natural law
legal theory, the authority of at least some 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
theories of law, differing from each other with respect to the role that
morality plays in determining the authority of legal norms.
Contents
I. Two Kinds of Natural Law Theory
II. Conceptual Naturalism
II.1 The Project of Conceptual Jurisprudence
II.2 Classical Natural Law Theory
III. The Substantive Neo-Naturalism of John Finnis
IV. The Procedural Naturalism of Lon L. Fuller
V. Ronald Dworkin’s Third Theory of Law
I. Two Kinds of Natural Law Theory
At the outset, it is important to distinguish two kinds of theory that go by
the name of natural law. The first is a theory of morality that is roughly
characterized by the following theses. First, moral propositions have what is
sometimes called objective standing in the sense that such propositions are the
bearers of objective truth-value; that is, moral propositions can be
objectively true or false. Though moral objectivism is sometimes equated with
moral realism (see, e.g., Moore 1992, 190: “the truth of any moral proposition
lies in its correspondence with a mind- and convention-independent moral
reality”), the relationship between the two theories is controversial. Geoffrey
Sayre-McCord (1988), for example, views moral objectivism as one species of
moral realism, but not the only form; on Sayre-McCord’s view, moral
subjectivism and moral intersubjectivism are also forms of moral realism.
Strictly speaking, then, natural law moral theory is committed only to the
objectivity of moral norms.
The second thesis constituting the core of natural law moral theory is the
claim that standards of morality are in some sense derived from, or entailed
by, the nature of the world and the nature of human beings. St. Thomas Aquinas,
for example, identifies the rational nature of human beings as that which
defines moral law: “the rule and measure of human acts is the reason, which is
the first principle of human acts” (Aquinas, ST I-II, Q.90, A.I). On this
common view, since human beings are by nature rational beings, it is morally
appropriate that they should behave in a way that conforms to their rational
nature. Thus, Aquinas derives the moral law from the nature of human beings (thus,
“natural law”).
But there is another kind of natural law theory having to do with the
relationship of morality to law. According to natural law theory of law, there
is no clean division between the notion of law and the notion of morality.
Though there are different versions of natural law theory, all subscribe to the
thesis that there are at least some laws that depend for their “authority” not
on some pre-existing human convention, but on the logical relationship in which
they stand to moral standards. Otherwise put, some norms are authoritative in
virtue of their moral content, even when there is no convention that makes
moral merit a criterion of legal validity. The idea that the concepts of law
and morality intersect in some way is called the Overlap Thesis.
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.
II. Conceptual Naturalism.
II.1 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.
II.2 Classical Natural Law Theory
All forms of natural law theory subscribe to the Overlap Thesis, which asserts
that there is some kind of non-conventional relation between law and morality.
According to this view, then, the notion of law cannot be fully articulated
without some reference to moral notions. Though the Overlap Thesis may seem
unambiguous, there are a number of different ways in which it can be
interpreted.
The strongest construction of the Overlap Thesis forms the foundation for the
classical naturalism of Aquinas and Blackstone. Aquinas distinguishes four
kinds of law: (1) eternal law; (2) natural law; (3) human law; and (4) divine
law. Eternal law is comprised of those laws that govern the nature of an
eternal universe; as Susan Dimock (1999, 22) puts it, one can “think of eternal
law as comprising all those scientific (physical, chemical, biological,
psychological, etc.) ‘laws’ by which the universe is ordered.” Divine 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
(i.e., 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
neo- naturalism 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.
III. The Substantive Neo-Naturalism of John Finnis
John Finnis takes himself to be explicating and developing the views of Aquinas
and Blackstone. Like Bix, Finnis believes that the naturalism of Aquinas and
Blackstone should not be construed as a conceptual account of the existence
conditions for law. According to Finnis, the classical naturalists were not
concerned with giving a conceptual account of legal validity; rather they were
concerned with explaining the moral force of law: “the principles of natural
law explain the obligatory force (in the fullest sense of ‘obligation’) of
positive laws, even when those laws cannot be deduced from those principles”
(Finnis 1980, 23-24). On Finnis’s view of the Overlap Thesis, the essential
function of law is to provide a justification for state coercion (a view he
shares with Ronald Dworkin). Accordingly, an unjust law can be legally valid,
but it cannot provide an adequate justification for use of the state coercive
power and is hence not obligatory in the fullest sense; thus, an unjust law
fails to realize the moral ideals implicit in the concept of law. An unjust
law, on this view, is legally binding, but is not fully law.
Like classical naturalism, Finnis’s naturalism is both an ethical theory and a
theory of law. Finnis distinguishes a number of equally valuable basic goods:
life, health, knowledge, play, friendship, religion, and aesthetic experience.
Each of these goods, according to Finnis, has intrinsic value in the sense that
it should, given human nature, be valued for its own sake and not merely for
the sake of some other good it can assist in bringing about. Moreover, each of
these goods is universal in the sense that it governs all human cultures at all
times. The point of moral principles, on this view, is to give ethical
structure to the pursuit of these basic goods; moral principles enable us to
select among competing goods and to define what a human being can permissibly
do in pursuit of a basic good.
On Finnis’s view, the conceptual point of law is to facilitate the common good
by providing authoritative rules that solve coordination problems that arise in
connection with the common pursuit of these basic goods. Thus, Finnis sums up
his theory of law as follows:
[T]he term ‘law’ ... refer[s] primarily to rules made, in accordance with
regulative legal rules, by a determinate and effective authority (itself
identified and, standardly, constituted as an institution by legal rules) for a
‘complete’ community, and buttressed by sanctions in accordance with the
rule-guided stipulations of adjudicative institutions, this ensemble of rules
and institutions being directed to reasonably resolving any of the community’s
co-ordination problems (and to ratifying, tolerating, regulating, or overriding
co-ordination solutions from any other institutions or sources of norms) for
the common good of that community (Finnis 1980, 276).
Again, it bears emphasizing that Finnis takes care to deny that there is any
necessary moral test for legal validity: “one would simply be misunderstanding
my conception of the nature and purpose of explanatory definitions of
theoretical concepts if one supposed that my definition ‘ruled out as non-laws’
laws which failed to meet, or meet fully, one or other of the elements of the
definition” (Finnis 1980, 278).
Nevertheless, Finnis believes that to the extent that a norm fails to satisfy
these conditions, it likewise fails to fully manifest the nature of law and
thereby fails to fully obligate the citizen-subject of the law. Unjust laws may
obligate in a technical legal sense, on Finnis’s view, but they may fail to
provide moral reasons for action of the sort that it is the point of legal
authority to provide. Thus, Finnis argues that “a ruler’s use of authority is
radically defective if he exploits his opportunities by making stipulations
intended by him not for the common good but for his own or his friends’ or party’s
or faction’s advantage, or out of malice against some person or group” (Finnis
1980, 352). For the ultimate basis of a ruler’s moral authority, on this view,
“is the fact that he has the opportunity, and thus the responsibility, of
furthering the common good by stipulating solutions to a community’s co-
ordination problems” (Finnis 1980, 351).
Finnis’s theory is certainly more plausible as a theory of law than the
traditional interpretation of classical naturalism, but such plausibility
comes, for better or worse, at the expense of naturalism’s identity as a
distinct theory of law. Indeed, it appears that Finnis’s natural law theory is
compatible with naturalism’s historical adversary, legal positivism, inasmuch
as Finnis’s view is compatible with a source-based theory of legal validity;
laws that are technically valid in virtue of source but unjust do not,
according to Finnis, fully obligate the citizen. Indeed, Finnis (1996) believes
that Aquinas’s classical naturalism fully affirms the notion that human laws
are “posited.”
IV. The Procedural Naturalism of Lon L. Fuller
Like Finnis, Lon Fuller (1964) rejects the conceptual naturalist idea that
there are necessary substantive moral constraints on the content of law. But
Fuller, unlike Finnis, believes that law is necessarily subject to a procedural
morality. On Fuller’s 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) the rules must be expressed in general terms;
(P2) the rules must be publicly promulgated; (P3) the rules must be prospective
in effect; (P4) the rules must be expressed in understandable terms; (P5) the
rules must be consistent with one another; (P6) the rules must not require
conduct beyond the powers of the 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:
[T]he author’s insistence on classifying these principles of legality as a
“morality” is a source of confusion both for him and his readers.... [T]he
crucial objection to the designation of these principles of good legal
craftsmanship as morality, in spite of the qualification “inner,” is that it
perpetrates a confusion between two notions that it is vital to hold apart: the
notions of purposive activity and morality. Poisoning is no doubt a purposive
activity, and reflections on its purpose may show that it has its internal
principles. (“Avoid poisons however lethal if they cause the victim to
vomit”....) But to call these principles of the poisoner’s art “the morality of
poisoning” would simply blur the distinction between the notion of efficiency
for a purpose and those final judgments about activities and purposes with
which morality in its various forms is concerned (Hart 1965, 1285-86).
On Hart’s view, all actions, including virtuous acts like lawmaking and
impermissible acts like poisoning, have their own internal standards of
efficacy. But insofar as such standards of efficacy conflict with morality, as
they do in the case of poisoning, it follows that they are distinct from moral
standards. Thus, while Hart concedes that something like Fuller’s eight
principles are built into the existence conditions for law, he concludes they
do not constitute a conceptual connection between law and morality.
Unfortunately, Hart overlooks the fact that most of Fuller’s eight principles
double as moral ideals of fairness. For example, public promulgation in
understandable terms may be a necessary condition for efficacy, but it is also
a moral ideal; it is morally objectionable for a state to enforce rules that
have not been publicly promulgated in terms reasonably calculated to give
notice of what is required. Similarly, we take it for granted that it is wrong
for a state to enact retroactive rules, inconsistent rules, and rules that
require what is impossible. Poisoning may have its internal standards of
efficacy, but such standards are distinguishable from the principles of
legality in that they conflict with moral ideals.
Nevertheless, Fuller’s principles operate internally, not as moral ideals, but
merely as principles of efficacy. As Fuller would likely acknowledge, the
existence of a legal system is consistent with considerable divergence from the
principles of legality. Legal standards, for example, are necessarily
promulgated in general terms that inevitably give rise to problems of
vagueness. And officials all too often fail to administer the laws in a fair
and even-handed manner—even in the best of legal systems. These divergences may
always be prima facie objectionable, but they are inconsistent with a legal
system only when they render a legal system incapable of performing its
essential function of guiding behavior. Insofar as these principles are built
into the existence conditions for law, it is because they operate as efficacy
conditions—and not because they function as moral ideals.
V. Ronald Dworkin’s “Third Theory”
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 legal authority 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.
Selected Bibliography
Thomas Aquinas, On Law, Morality and Politics (Indianapolis: Hackett Publishing
Co., 1988)
John Austin, Lectures on Jurisprudence and the Philosophy of Positive Law (St.
Clair Shores, MI: Scholarly Press, 1977)
------The Province of Jurisprudence Determined (Cambridge: Cambridge University
Press, 1995)
Jeremy Bentham, A Fragment of Government (Cambridge: Cambridge University
Press, 1988)
------Of Laws In General (London: Athlone Press, 1970)
------The Principles of Morals and Legislation (New York: Hafner Press, 1948)
Brian Bix, “On Description and Legal Reasoning,” in Linda Meyer (ed.), Rules
and Reasoning (Oxford: Hart Publishing, 1999)
------Jurisprudence: Theory and Context (Boulder, CO: Westview Press, 1996)
------“Natural Law Theory,” in Dennis M. Patterson (ed.), A Companion to
Philosophy of Law and Legal Theory (Cambridge: Blackwell Publishing Co., 1996)
William Blackstone, Commentaries on the Law of England (Chicago: The University
of Chicago Press, 1979)
Jules L. Coleman, “On the Relationship Between Law and Morality,” Ratio Juris,
vol. 2, no. 1 (1989), 66-78
------“Negative and Positive Positivism,” 11 Journal of Legal Studies 139
(1982)
Jules L. Coleman and Jeffrie Murphy, Philosophy of Law (Boulder, CO: Westview
Press, 1990)
Ronald M. Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986)
------Taking Rights Seriously (Cambridge: Harvard University Press, 1977)
John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980)
------“The Truth in Legal Positivism,” in Robert P. George, The Autonomy of Law
(Oxford: Clarendon Press, 1996), 195-214
Lon L. Fuller, The Morality of Law, Revised Edition (New Haven: Yale University
Press, 1964)
------“A Reply to Professors Cohen and Dworkin”, 10 Villanova Law Review 655
(1965), 657.
------“Positivism and Fidelity to Law--A Reply to Professor Hart,” 71 Harvard
Law Review 630 (1958)
Klaus Füßer, “Farewell to ‘Legal Positivism’: The Separation Thesis
Unravelling,” in George, The Autonomy of Law, 119-162
Robert P. George, “Natural Law and Positive Law,” in George, The Autonomy of
Law, 321-334
------Natural Law Theory: Contemporary Essays (Oxford: Clarendon Press, 1992)
H.L.A. Hart, The Concept of Law, Second Edition (Oxford: Clarendon Press, 1994)
------“Book Review of The Morality of Law” 78 Harvard Law Review 1281 (1965)
------Essays on Bentham (Oxford: Clarendon Press, 1982)
------“Positivism and the Separation of Law and Morals,” 71 Harvard Law Review
593 (1958)
Kenneth Einar Himma, “Positivism, Naturalism, and the Obligation to Obey Law,”
Southern Journal of Philosophy, vol. 36, no. 2 (Summer 1999)
------“Functionalism and Legal Theory: The Hart/Fuller Debate Revisited,” De
Philosophia, vol. 14, no. 2 (Fall/Winter 1998)
J.L. Mackie, “The Third Theory of Law,” Philosophy & Public Affairs, Vol.
7, No. 1 (Fall 1977)
Michael Moore, “Law as a Functional Kind,” in George, Natural Law Theory, 188-
242
Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon
Press, 1979)
------“Authority, Law and Morality,” The Monist, vol. 68, 295-324
------“Legal Principles and the Limits of Law,” 81 Yale Law Review 823 (1972)
Geoffrey Sayre-McCord, “The Many Moral Realisms,” in Sayre-McCord (ed.), Essays
on Moral Realism (Ithica: Cornell University Press, 1988)
Kenneth Einar Himma
University of Washington
Comments and questions may be sent to the author at [email protected].
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