natural vs positive law

7/28/2019 natural vs positive law

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Both natural law and ius gentium, therefore, have the force of law beyond national and political

boundaries. There are many important social institutions, indeed, that St. Thomas identifies as

pertaining to ius gentium. Perhaps the two most important are marriage and property. Hence, thefolly of those who would attempt to deny the special bond of the marriage contract, because it is

something natural to human nature. "What God has joined together, let no man put asunder" is

the scriptural admonition regarding the natural obligation taken on in the marriage-covenant. Thecivil law (positive law) simply has no authority to dissolve it. Similarly, those who attack theinstitution of property in land and goods mistake badly the basic requirements of our rational

nature. It seems also that St. Thomas included in ius gentiumthe institution of free trade,

provided it is fair trade. For he places "just sales and purchases" amongst the conclusions to bederived from natural law.

The ius gentiumis clearly an area of law that deserves much closer study. It is unfortunate that ittends to be overlooked because of an uncritical and simplistic interpretation of the division of

law into natural and positive. It is even more unfortunate that its precepts then tend to be

relegated to the status of the merely conventional.

Those laws that have been duly enacted by a properly instituted and popularly recognized

branch of government.

Positive laws may be promulgated, passed, adopted, or otherwise "posited" by an official or

entity vested with authority by the government to prescribe the rules and regulations for aparticular community. In the United States, positive laws come in a variety of forms at both the

state and federal levels, including legislative enactments, judicial orders, executive decrees, and

administrative regulations. In short, a positive law is any express written command of the

government. The belief that the only legitimate sources of law are those written rules andregulations laid down by the government is known asPositivism.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

positive law n. statutory man-made law, as compared to "natural law" which is purportedly basedon universally accepted moral principles, "God's law," and/or derived from nature and reason.

The term "positive law," was first used by Thomas Hobbes in Leviathan (1651)

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, but the core claims of the two kinds of theory are logically independent. It does not

refer to thelaws of nature,the laws that science aims to describe. According to natural law moraltheory, 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 willfocus on natural law legal theory.
http://legal-dictionary.thefreedictionary.com/Positivismhttp://legal-dictionary.thefreedictionary.com/Positivismhttp://legal-dictionary.thefreedictionary.com/Positivismhttp://www.iep.utm.edu/lawofnathttp://www.iep.utm.edu/lawofnathttp://www.iep.utm.edu/lawofnathttp://www.iep.utm.edu/lawofnathttp://legal-dictionary.thefreedictionary.com/Positivism


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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 tothe 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 naturallaw theory such as the theory ofThomas Aquinasfocuses on the overlap between natural lawmoral 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 necessarysubstantivemoral constraints on thecontent of law. Lastly, Ronald Dworkins theory is a response and critique oflegal 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 Theory2. Conceptual Naturalism1. The Project of Conceptual Jurisprudence2. Classical Natural Law Theory

3. The Substantive Neo-Naturalism of John Finnis4. The Procedural Naturalism of Lon L. Fuller5. Ronald Dworkins Third Theory6. References and Further Reading

1. Two Kinds of Natural Law Theory

At the outset, it is important to distinguish two kinds of theory that go by the name of naturallaw. 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 beobjectively 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 iscontroversial. Geoffrey Sayre-McCord (1988), for example, views moral objectivism as one

species of moral realism, but not the only form; on Sayre-McCords 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 ofhuman 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 humanbeings are by nature rational beings, it is morally appropriate that they should behave in a way
http://www.iep.utm.edu/aq-moralhttp://www.iep.utm.edu/aq-moralhttp://www.iep.utm.edu/aq-moralhttp://www.iep.utm.edu/legalposhttp://www.iep.utm.edu/legalposhttp://www.iep.utm.edu/legalposhttp://www.iep.utm.edu/natlaw/#H1http://www.iep.utm.edu/natlaw/#H2http://www.iep.utm.edu/natlaw/#SH2ahttp://www.iep.utm.edu/natlaw/#SH2bhttp://www.iep.utm.edu/natlaw/#H3http://www.iep.utm.edu/natlaw/#H4http://www.iep.utm.edu/natlaw/#H5http://www.iep.utm.edu/natlaw/#H6http://www.iep.utm.edu/natlaw/#H6http://www.iep.utm.edu/natlaw/#H5http://www.iep.utm.edu/natlaw/#H4http://www.iep.utm.edu/natlaw/#H3http://www.iep.utm.edu/natlaw/#SH2bhttp://www.iep.utm.edu/natlaw/#SH2ahttp://www.iep.utm.edu/natlaw/#H2http://www.iep.utm.edu/natlaw/#H1http://www.iep.utm.edu/legalposhttp://www.iep.utm.edu/aq-moral


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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, allsubscribe 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, evenwhen 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 ofa 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 thatutilitarians 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 lawtheory 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 pointof 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 providean 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).


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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 fewphilosophical 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 ofdifferent 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 havetraditionally 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 denysuch a relation.

b. 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 theOverlap 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 thatgovern 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 bynatural 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 ofbeings 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, isderived from the rational nature of human beings. Good and evil are thus both objective and

universal.


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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 lawas 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 Augustines 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 lawof 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 thispassage, 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 theclaim 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 haveconsiderable 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 hasoften been pointed out that, contraAugustine, unjust laws are all-too- frequently enforcedagainst 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 sovereignunder 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 haveimpugned the validity (Austin 1995, 158).

Of course, as Brian Bix (1999) points out, the argument does little work for Austin because it isalways possible for a court to enforce a law against a person that does not satisfy Austins own

theory of legal validity.


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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, thelegal 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 thinkabout 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 normbeing 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 forthe 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 takenliterally:

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: shes no lawyer or hes no doctor. This only indicates that we do not think that thetitle 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 madein favor of Bixs view, the long history of construing Aquinas and Blackstone as conceptual


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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.

3. 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 theobligatory 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 Finniss 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 cannotprovide 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, Finniss 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 isuniversal 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 Finniss 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 commonpursuit 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 accordancewith the rule-guided stipulations of adjudicative institutions, this ensemble of rules and

institutions being directed to reasonably resolving any of the communitys 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 testfor 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 asnon-laws laws which failed to meet, or meet fully, one or other of the elements of

the definition (Finnis 1980, 278).


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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 Finniss view, but theymay 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 rulers use of authority is radically defective if he exploits

his opportunities by making stipulations intended by him not for the common good but for hisown or his friends or partys or factions advantage, or out of malice against some person orgroup (Finnis 1980, 352). For the ultimate basis of a rulers 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 communitys coordination problems (Finnis 1980, 351).

Finniss 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 ofnaturalisms identity as a distinct theory of law. Indeed, it appears that Finniss natural law

theory is compatible with naturalisms historical adversary, legal positivism, inasmuch as

Finniss 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 Aquinass classical naturalism fully affirms the notion that human

laws are posited.

4. The Procedural Naturalism of Lon L. Fuller

Like Finnis, Lon Fuller (1964) rejects the conceptual naturalist idea that there are necessarysubstantivemoral constraints on the content of law. But Fuller, unlike Finnis, believes that law is

necessarily subject to aproceduralmorality. On Fullers 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 purposesand 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 ofrules. 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 laws

essential function is to achiev[e] [social] order through subjecting peoples conduct to the

guidance of general rules by which they may themselves orient their behavior (Fuller 1965,657).

Fullers functionalist conception of law implies that nothing can count as law unless it is capableof performing laws 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;


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(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 Fullers view, no system of rules that fails minimally to satisfy these principles of legalitycan achieve laws 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 theexistence 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 soby respecting human autonomy because rules guide behavior. Since no system of rules can

achieve these morally valuable objectives without minimally complying with the principles oflegality, it follows, on Fullers 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 conceptualnaturalist.

Nevertheless, Fullers conceptual naturalism is fundamentally different from that of classicalnaturalism. 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 onthe procedural mechanisms by which law is made and administered: What I have called theinternal 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 efficaciousand 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 ofabstraction 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 theseeight 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).

Fullers procedural naturalism is vulnerable to a number of objections. H.L.A. Hart, for example,

denies Fullers claim that the principles of legality constitute an internal morality; according to

Hart, Fuller confuses the notions of morality and efficacy:


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[T]he authors 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 itperpetrates 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 thevictim to vomit.) But to call these principles of the poisoners art the morality of poisoningwould 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 Harts 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 efficacyconflict 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 Fullers eightprinciples 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 Fullers eight principles double as moralideals 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 retroactiverules, 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, Fullers principles operate internally, not as moral ideals, but merely as principlesof efficacy. As Fuller would likely acknowledge, the existence of a legal system is consistentwith 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 thebest of legal systems. These divergences may always beprima facieobjectionable, 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 functionas moral ideals.

5. Ronald Dworkins Third TheoryRonald Dworkins 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 itis 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.


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The Conventionality Thesis emphasizes laws 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 becauseof 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 naturalisms 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 simplecontention 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 positivisms 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).

InRiggs v. Palmer, for example, the court considered the question of whether a murderer couldtake 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 victims will.

Despite this, the court declined to award the defendant his gift under the will on the ground thatit would be wrong to allow him to profit from such a grievous wrong. On Dworkins 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 Dworkins view, theRiggscourt was not just reaching beyond the law to extralegal standardswhen it considered this principle. For theRiggsjudges would rightfully have been criticizedhad 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 principlesare part of the law.

Further, Dworkin maintains that the legal authority of standards like theRiggsprinciple 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 specifiedby some ultimate master rule of recognition (Dworkin 1977, 41).

On Dworkins view,the legal authority of theRiggsprinciple can be explained wholly in termsof its content. TheRiggsprinciple was binding, in part, because it is a requirement of

fundamental fairness that figures into the best moral justification for a societys legalpractices

considered as a whole. A moral principle is legally authoritative, according to Dworkin, insofaras it maximally conduces to the best moral justification for a societys legal practices considered

as a whole.


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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 isthe one that makes the law the moral best it can be. Accordingly, on Dworkins 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 andarrangements 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

mustfitwith those practices in the sense that it coheres with existing legal materials defining the

practices. Second, since an interpretation provides a moral justificationfor 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 thefollowing way:

A thoughtful judge might establish for himself, for example, a rough threshold of fit which anyinterpretation of data must meet in order to be acceptable on the dimension offit, 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 betweenthe 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 beprovided 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 judges 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 RightsThesis, 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

judges duty, even in hard cases, to discover what the rights of the parties are, not to invent newrights retrospectively (Dworkin 1977, 81).


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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 ofprinciple justify a political decision by showing that the decision respects or secures some

individual or group right (Dworkin 1977, 82).

On Dworkins 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 infavor of one partys claim of right and against another partys 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 legalpractices considered as a whole.

Notice that Dworkins views on legal principles and judicial obligation are inconsistent with all

three of legal positivisms core commitments. Each contradicts the Conventionality Thesisinsofar 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 communityslaw regardless of whether they have been formally promulgated. Most importantly, Dworkins

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.

natural vs positive law

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