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St. Thomas Aquinas on the Natural Law.

Aquinas bases his doctine on the natural law, as one would


expect, on his understanding of God and His relation to His
creation. He grounds his theory of natural law in the notion of an
eternal law (in God). In asking whether there is an eternal law, he
begins by stating a general definition of all law: Law is a dictate of
reason from the ruler for the community he rules. This dictate of
reason is first and foremost within the reason or intellect of the
ruler. It is the idea of what should be done to insure the well
ordered functioning of whatever community the ruler has care for.
(It is a fundamental tenet of Aquinas' political theory that rulers
rule for the sake of the governed, i.e. for the good and well-being
of those subject to the ruler.) Since he has elsewhere shown that
God rules the world with his reason (since he is the cause of its
being (cf. ST Ia 22, 1-2), Aquinas concludes that God has in His
intellect an idea by which He governs the world. This Idea, in God,
for the governance of things is the eternal law. (Summa
TheologiaeI-IIae, 91, 1)
Next, Aquinas asks whether there is in us a natural law. First, he
makes a distinction: A law is not only in the reason of a ruler, but
may also be in the thing that is ruled. In the case of the Eternal
Law, the things of creation that are ruled by that Law have it
imprinted on the them through their nature or essence. Since
things act according to their nature, they derive their proper acts
and ends (final cause) according to the law that is written into
their nature. Everything in nature, insofar as they reflects the
order by which God directs them through their nature for their
own benefit, reflects the Eternal Law in their own natures. (S.T. IIIae, 91, 2)
The Natural Law, as applied to the case of human beings, requires
greater precision because of the fact that we have reason and free
will. It is the our nature humans to act freely (i.e. to be provident
for ourselves and others) by being inclined toward our proper acts
and end. That is, we human beings must exercise our natural
reason to discover what is best for us in order to acheive the end
to which their nature inclines. Furhtermore, we must exercise our
freedom, by choosing what reason determines to naturally suited
to us, i.e. what is best for our nature. The natural inclination of
humans to acheive their proper end through reason and free will
is the natural law. Formally defined, the Natural Law is humans'
participation in the Eternal Law, through reason and will.
Humans actively participate in the eternal law of God (the
governance of the world) by using reason in conformity with the
Natural Law to discern what is good and evil.
In applying this universal notion of Natural Law to the human
person, one first must decide what it is that God has ordained
human nature to be inclined toward. Since each thing has a
nature given it by God, and each thing has a natural end, so there
is a fulfillment to human activity of living. When a person
discovers by reason what the purpose of living is, he or she
discover his or her natural end is. Accepting the medieval dictum
"happiness is what all desire" a person is happy when he or she
achieves this natural end.
Aquinas distinguishes different levels of precepts or commands
that the Natural Law entails. The most universal is the command
"Good is to be done and pursued and evil avoided." This applies to
everything and everyone, so much so that some consider it to be
more of a description or definition of what we mean by "good." For
these philosophers, a thing is "good" just in case it is pursued or
done by someone. Aquinas would agree with this to a certain
extent; but he would say that that is a definition of an apparent
good. Thus, this position of Aquinas has a certain
phenomenological appeal: a person does anything and everything
he or she does only because that thing at least "appears" to be
good. Even when I choose something that I know is bad for myself,
I nevertheless chooses it under some aspect of good, i.e. as some
kind of good. I know the cake is fattening, for example, and I don't
choose to eat it as fattening. I do, however, choose to eat it as tasty
(which is an apparent, though not a true, good).
On the level that we share with all substances, the Natural Law
commands that we preserve ourselves in being. Therefore, one of
the most basic precepts of the Natural Law is to not commit

suicide. (Nevertheless, suicide can, sadly, be chosen as an


apparent good, e.g. as the sessation of pain.) On the level we share
with all living things, the Natural Law commands that we take
care of our life, and transmit that life to the next generation. Thus,
almost as basic as the preservation of our lives, the Natural Law
commands us to rear and care for offspring. On the level that is
most specific to humans, the fulfillment of the Natural Law
consists in the exercize those activities that are unique of
humans, i.e. knowledge and love, and in a state that is also
natural to human persons, i.e. society. The Natural Law, thus,
commands us to develop our rational and moral capacities by
growing in the virtues of intellect (prudence, art, and science) and
will (justice, courage, temperance). Natural law also commands
those things that make for the harmonious functioning of society
("Thou shalt not kill," "Thou shalt not steal.") Human nature also
shows that each of us have a destiny beyond this world, too. Man's
infinite capacity to know and love shows that he is destined to
know and love an infinite being, God.
All of these levels of precepts so far outlined are only the most
basic. "The good is to be done and pursued and evil is to be
avoided" is not very helpful for making actual choices. Therefore,
Aquinas believes that one needs one's reason to be perfected by
the virtues, especially prudence, in order to discover precepts of
the Natural Law that are more proximate to the choices that one
has to make on a day to day basis.
The Thomistic notion of Natural Law has its roots, then, in a quite
basic understanding of the universe as caused and cared for by
God, and the basic notion of what a law is. It is a fairly
sophisticated notion by which to ground the legitimacy of human
law in something more universal than the mere agreement and
decree of legislators. Yet, it allows that what the Natural Law
commands or allows is not perfectly obvious when one gets to the
proximate level of commanding or forbidding specific acts. It
grounds the notion that there are some things that are wrong,
always and everywhere, i.e. "crimes against humanity," while
avoiding the obvious dificulties of claiming that this is determined
by any sort of human concensus. Nevertheless, it still sees the
interplay of people in social and rational discourse as necessary to
determine what in particular the Natural Law requires.

THE NATURAL LAW THEORY of THOMAS AQUINAS


Thomas D. DAndrea, University of Cambridge

Thomas Aquinas is generally regarded as the Wests pre-eminent


theorist of the natural law, critically inheriting the main traditions
of natural law or quasinatural law thinking in the ancient world
(including the Platonic, and particularlyAristotelian and Stoic
traditions) and bringing elements from these traditions into
systematic relation in the framework of a metaphysics of creation
and divine providence. His theory sets the terms of debate for
subsequent natural law theorizing.

The fundamentals of Aquinass natural law doctrine are contained


in the so-called Treatise on Law in Thomass masterwork,
the Summa Theologiae, comprising Questions 90 to 108 in the
first part of the second part of the three-part Summa.[1]Thomists
have rightly expressed reservations about the procedure of
surgically extracting the teaching in those Questions (or often the
more strictly philosophical Questions 90 to 97) and representing it
as Thomass natural law thinking tout court. Indeed, there is less
possibility of distorting Thomass theory if one is careful to read
the Treatise on Law in the context of the conceptual architecture
of the Summa Theologiae as a whole.
The Summa is Thomass mature theological synthesis, aimed at
providing beginners in theology with a systematic, overall account

of both the divine nature, as knowable by faith-enlightened


reason, and the divine plan and work of creating and redeeming
the cosmos and ordaining it to a final transfiguration in glory at
the end of history. Thomass method in composing the work, as he
states in the works Prologue, is to treat of the whole of revealed
theology (sacra doctrina) as briefly and clearly as possible, but
according to a strict order whereby the very contours of the
subject matter of the science dictate the architectonic plan and
the sequential treatment of questions within the work. The first
Question of theSumma so treats the nature and scope of theology
itself, and once this is established, the work considers the very
existence and nature of God: God first in His own inner and
Trinitarian life, and then in His external activity of giving being to
creatures and ordaining them to perfection or full realization for
the manifestation or communication of His own glory.
The Summa and theology itself are all about God. The divine
nature is the subject matter of the science [2], and the very first
principles or premises that serve as inferential starting points in
the systematic inquiry of theology are those items that God has
revealed to us concerning His nature and His plan and purpose in
creating the cosmos.[3] God Himself and subsequently all creation
are studied in the light of these starting points or first principles.
In the order of the Summa, the first part of the work treats the
divine nature in itself and then the free creative production of
creatures by God (angels, humans, and all other animate and
inanimate beings). The second part treats the grace-aided
attainment of a cognitive-affective union with God by human
activity (which union represents the fullest realization of human
nature, as we shall see), and the third part treats Christ and his
Church and sacraments, the necessary means for mans union
with God.
Law, of its various sorts, has a role to play in humans full
realization of their nature by free acts (acts over which they have a
certain degree of control and dominion). What role? To ask this
question is to seek to grasp Thomass natural law teaching in the
context of his overall metaphysical cosmology. According to
Thomas, human nature, a psychosomatic unity, is perfected or
fully realized by harmonious and habitual excellence in the
exercise of its intrinsic capacities and powers (e.g. cognitive,
creative, affective, productive). Highest among these capacities
the capacity with the most potential to enrich and enlarge human
nature and so to realize it most completelyis the human
intellect, with its power to come to some understanding of the
nature of whatever exists. Following Aristotle, Thomas teaches
that through intellect the human soul is potentially all things: it
ranges over the entire universe of what is, and by acts of
understanding and inferring, it in a certain way brings the entire
universe into the soul. Put another way, in conjunction with the
will the intellect expands the soul to become all that is by a
cognitive and affective, but not a physical, union. Again with
Aristotle, Thomas maintains that the highest object of this highest
human power, (and so the appropriate but often hidden or
misperceived ultimate and crowning end of all human excellencein-activity and striving) is cognitive-affective union with the first
uncaused cause of the totality of things: Deus (in Aquinass Latin)
or God.
For Thomas, in contradistinction to Aristotle but closer to the
teaching of Plato, this first uncaused cause is not merely the best,
most self-sufficient, most fully realized being in the cosmos, but
also the artisan-creator and ruler of the cosmos. This first, selfexistent, and infinite being loves the world into existence,
according to the model of His own eternal creative ideas, and
orders the totality of individual things, notes as it were in a
symphony, to one integrated end or purpose: a cosmic common
good.

Created beings without intellect or will (whether animate or


inanimate) are willed into being and directed toward their own
perfection in the context of the perfection of the whole, which
perfection they each approach automatically or spontaneously and
without understanding or resistance. Creatures endowed with
intellect and will (angels and humans), however, only fully realize
their own potentialities consciously or by uncoerced intelligible
decision, and so are able to ratify or to frustrate Gods creative
purpose. It is here that we see the role in the divine plan and in
human life for law, as human beings characteristically
understand the term: law, Thomas will have it, is an extrinsic
source or principle of human perfection or full human
development. God, he states, instructs us by means of His Law. [4]
Thomas argues outright in the very first article of the first
question of the Treatise on Law, that law (lex) essentially can be
seen as an ordinance of reason directing activity toward some end,
goal, or purpose, and the highest end or purpose we have as
humans is our ultimate fulfillment, the full realization of our
nature, or happiness as is commonly said in English. Hence all
law is meant to sub-serve human happiness. [5] But law has by
common acknowledgement and usage a social function as well: it
directs the activity of some collectivity to a common goal, and it
does this authoritatively. So the true purpose of law is to subserve the happiness of all in the community. [6] But law does not
merely recommend or suggest, it binds and commands.
[7]
Lawmakers in our familiar experience are thus recognized
authority figures within a social community who address
themselves to the reason of the members of that community,
commanding them to shape their actions in certain specified
ways.[8] Because law has this essentially directive function, in
order for an ordinance of reason from a recognized authoritative
source to have the status of law, it must also be promulgated, or
made public, so that it can perform its coordinating and directing
work. Hence we have Thomass famous lapidary definition of law
in the Treatise: it is an ordinance of reason for the common good,
made by him who has care of the community, and promulgated. [9]

God, the ultimate cause of all being, activity, and development in


everything that is, is nothing if not caring for the community of
creation, and as universal creator He has authority to the highest
degree with respect to His intelligent creatures. Is He not the
lawmaker-lawgiver par excellence? He is, Thomas thinks, since
God satisfies the condition for this appellation perfectly.
Elaborating on an earlier theological tradition but making a
straightforwardly metaphysical point, Thomas maintains that we
have a law of Gods making that is co-eternal with His own nature.
This is the Eternal Law (lex aeterna) through which the divine
intellect creatively designs and directs all creatures to a common
end (the common end of the universe), promulgating in time this
eternal ordinance of His reason by the very act of creating beings
and endowing them with spontaneous natural inclinations to
move toward their own perfection in the context of the universe
and its overall and unified perfection.

Created beings without intellect and will observe the eternal law,
the eternal directives in the creative mind of God, spontaneously
or automatically and perfectly. In the case of human beings, this
eternal law directs them spontaneously toward their full and
complete good by ordaining their essential nature to acts of
understanding and desire for the goods constitutive of human
perfection or fulfillment. But human beings have each their own
intellect and will, so their spontaneous inclination and
subsequent movement toward that full and complete good is
brought about (or not, since it can be resisted or rejected) by
conscious ratification and cooperation, that is, knowingly and
willingly. Thus, in the human world we have the Eternal Law as
received and understood from the inside, as it were, and observed

only conditionally: when humans correctly understand, desire,


and act for the goods of human nature (food, drink, clothing,
shelter, creative activity, knowledge, friendship, etc.) they are
freely enacting observance to the Eternal Law. They are not
making a law for themselves, but are discovering it and
appropriating it for themselves. They are discovering and
potentially ratifying in action the divine design-plan for their
nature, to which non-rational creatures witness in whatever they
do and undergo, although they are neither cognizant of this plan
as law, nor capable of knowingly instantiating or resisting it.

This for Thomas finally is the natural law (lex naturalis): a sharing
from within (or participation) of the Eternal Law, but not, Thomas
insists, something otherwise different from that first and highest
law in the mind of God: the natural law is nothing else than the
rational creatures participation of the eternal law. [10] This
participation is available to all humans independently of any
reception on their part of divine supernatural revelation: the
natural law is observed whenever humans both engage in correct
practical reasoning about what is good and best for them overall
in any given situation[11] and when they act in accord with that
rational determination.[12]
The natural law, according to Aquinas, has certain basic and selfevident precepts or dictates, dictates knowable to any human with
a properly functioning intellect and a modicum of experience of
the world. Paraphrasing Thomas, first and fundamental, is the
precept that, anything good [i.e. that which perfects human
nature] is to be pursued [is the appropriate object of human
activity], and the opposite of this good, evil, is to be avoided in all
human acts. Other basic precepts, but with specific content,
would include those such as: bodily health is a good to be
pursued and bodily harm avoided, or knowledge is a good to be
pursued and ignorance and falsehood avoided, or friendship is a
good to be pursued and those things opposed to it avoided. [13]

In each case, human reason grasps that some object is perfective


of human nature and so directs that nature toward it by an at
least tacit precept or action-guide, while directing it away from
that goods contrary. The basic precepts of the natural law
command human nature to seek obvious human goods; when the
status of some presumptive object of human action as a good is
less evident, investigation is required to determine its status. Not
all, however, are equally fit for this task of discernment about
what is good for human nature in general and good for this
particular human being as such.[14]

This natural law instantiating practical reasoning about what is


best for humans by nature (and therefore about what is ordained
by God) spontaneously and appropriately results, as Thomas
observes, in the construction of man-made laws. Although Gods
design-plan for the whole of humanity (for all human acts
throughout cosmic history, that is, and for their orchestration
toward the common good of the cosmos) is perfectly complete and
specified in all detail in the divine mind, that portion of the
Eternal Law which concerns humankind in its nature and in its
divinely foreknown history is not fully graspable by the human
intellect. Because of this inherent limitation of the human mind,
humans must make their own laws to supplement that portion of
the Eternal Law that they do spontaneously and readily grasp
(which portion includes the rudimentary parts of the natural law)
[15]
, to direct themselves in community to their fulfillment. They do
this correctly either by deriving specific norms from the most
basic and general principles or precepts of the natural law [16], or
when they give specific shape to one of these basic and discovered

dictates or principles appropriate for a particular time and


place[17].

The former derivation of human laws from the natural law


Thomas refers to as the law of nations (ius gentium); the latter he
refers to as civil law (lex civilis)[18]: both forms of law are, inasmuch
as they are legitimately derived from the dictates of the natural
law, normative. That is, they comprise rational requirements for
right human action on Aquinass view. Any human law, though,
that directly contravenes a dictate of the natural law [19] ipso
facto fails as a law and has the status of an irrational command
instead. Such commands ought only be observed for prudential
reasons, such as to avoid some greater harm that might arise in
the social order from the failure to observe what is really only a
pseudo-law.[20]

Estrada vs Escritor (August 4, 2003)


Estrada vs. Escritor
AM P-02-1651, August 4, 2003
FACTS:
Soledad Escritor is a court interpreter since 1999 in the RTC of
Las Pinas City. Alejandro Estrada, the complainant, wrote to
Judge Jose F. Caoibes, presiding judge of Branch 253, RTC of Las
Pinas City, requesting for an investigation of rumors that Escritor
has been living with Luciano Quilapio Jr., a man not her
husband, and had eventually begotten a son. Escritors husband,
who had lived with another woman, died a year before she entered
into the judiciary. On the other hand, Quilapio is still legally
married to another woman. Estrada is not related to either
Escritor or Quilapio and is not a resident of Las Pinas but of
Bacoor, Cavite. According to the complainant, respondent should
not be allowed to remain employed in the judiciary for it will
appear as if the court allows such act.
Escritor is a member of the religious sect known as the Jehovahs
Witnesses and the Watch Tower and Bible Tract Society where her
conjugal arrangement with Quilapio is in conformity with their
religious beliefs. After ten years of living together, she executed on
July 28, 1991 a Declaration of Pledging Faithfulness which was
approved by the congregation. Such declaration is effective when
legal impediments render it impossible for a couple to legalize their
union. Gregorio, Salazar, a member of the Jehovahs Witnesses
since 1985 and has been a presiding minister since 1991, testified
and explained the import of and procedures for executing the
declaration which was completely executed by Escritor and
Quilapios in Atimonan, Quezon and was signed by three
witnesses and recorded in Watch Tower Central Office.
ISSUE:
Whether or not respondent should be found guilty of the
administrative charge of gross and immoral conduct and be
penalized by the State for such conjugal arrangement.
HELD:
A distinction between public and secular morality and religious
morality should be kept in mind. The jurisdiction of the Court
extends only to public and secular morality.
The Court states that our Constitution adheres the benevolent
neutrality approach that gives room for accommodation of
religious exercises as required by the Free Exercise Clause. This
benevolent neutrality could allow for accommodation of morality
based on religion, provided it does not offend compelling state
interests.

The states interest is the preservation of the integrity of the


judiciary by maintaining among its ranks a high standard of
morality and decency. There is nothing in the OCAs (Office of
the Court Administrator) memorandum to the Court that
demonstrates how this interest is so compelling that it should
override respondents plea of religious freedom. Indeed, it is
inappropriate for the complainant, a private person, to present
evidence on the compelling interest of the state. The burden of
evidence should be discharged by the proper agency of the
government which is the Office of the Solicitor General.
In order to properly settle the case at bar, it is essential that the
government be given an opportunity to demonstrate the
compelling state interest it seeks to uphold in opposing the
respondents position that her conjugal arrangement is not
immoral and punishable as it is within the scope of free exercise
protection. The Court could not prohibit and punish her conduct
where the Free Exercise Clause protects it, since this would be an
unconstitutional encroachment of her right to religious freedom.
Furthermore, the court cannot simply take a passing look at
respondents claim of religious freedom but must also apply the
compelling state interest test.
IN VIEW WHEREOF, the case is REMANDED to the Office of the
Court Administrator. The Solicitor General is ordered to intervene
in the case where it will be given the opportunity (a) to examine
the sincerity and centrality of respondent's claimed religious belief
and practice; (b) to present evidence on the state's "compelling
interest" to override respondent's religious belief and practice; and
(c) to show that the means the state adopts in pursuing its
interest is the least restrictive to respondent's religious freedom.
The rehearing should be concluded thirty (30) days from the
Office of the Court Administrator's receipt of this Decision.

Escritor was therefore held not administratively liable for grossly


immoral conduct. Escritors conjugal arrangement cannot be
penalized as she has made out a case for exemption from the law
based on her fundamental right to religion. The Court recognizes
that state interests must be upheld in order that freedoms
including religious freedommay be enjoyed.
In the area of religious exercise as preferred freedom, however,
man stands accountable to an authority higher than the state,
and so the state interest sought to be upheld must be so
compelling that its violation will erode the very fabric of the state
that will also protect the freedom. In the absence of a showing
that the state interest exists, man must be allowed to subscribe to
the Infinite.
A Summary of John Finniss Theory of Natural Law
Posted on January 3, 2015by hughmccarthy23
So far I have looked at two theories of physical law. Lewis says
that physical laws are descriptive statements made humans,
whereas Armstrong says that law are relations between
Universals, and so exist out there in the real world.
I want to get a similar contrast within legal law. So far we
have Kelsens theory, where laws are normative statements made
by humans. We can contrast this with a theory of natural law.
According to natural law, there are laws that exist out there, that
are true whether we know them or not.
Natural law has existed as an idea for millennia. I am focussing on
the work Natural Law and Natural Rights, a seminal restatement of
the doctrine by John Finnis.
In this post I will just summarise Finniss theory. I also have some
criticisms, and an attempt to combine this theory with Kelsens
theory.
John Finnis
John Finnis is an Australian legal scholar who grew up in
Adelaide before getting a Rhodes scholarship to Oxford. He is
currently professor of law at Oxford. Finnis publishedNatural Law
and Natural Rights in 1980, and the book is considered a seminal
restatement of the natural law doctrine. Finnis is a practising
catholic, and a fair proportion of his work (in NLNR and
subsequent articles) deals with the relationship between natural
law and Christian/Catholic values.
The Seven Basic Goods

The central object of Finniss theory is a set of seven fundamental


goods for humankind. These goods are:

Life

Knowledge (for its own sake)

Friendship and Sociability

Play (for its own sake)

Aesthetic Experience

Practical Reasonableness, i.e. the ability to reason


correctly about what is best for yourself, and to act on those
decisions.

Religion i.e. a connection with, and participation with,


the orders that transcend individual humanity
The basic goods serve as an explanation of why we do things. Any
worthwhile activity is worth doing because it participates in one or
more basic goods.
Other positive qualities, like freedom or humility, are merely
methods by which we can achieve one or more of the basic goods.
Other motivations for action, such as the pursuit of pleasure or
material gain, are misguided and motivated by human inclination
rather than practical reason.
The Reality of the Basic Goods
The statement these are the seven basic goods is just as true as
the statement there are infinitely many primes. The basic goods
exist independent of human thought, and so we can put them in
reality in the same sense that maths lives in reality. The basic
goods, of course, do not have physical form.
Where do these goods come from?
We can distinguish between theoretical reason, which describes
what is true, withpractical reason, which describes how to act.
Theoretical reason has many principles that cannot be proved,
such as:

the validity of deductive inferences

the principle of induction

the assumption that experience corresponds to reality

the preference for a simple explanation over a complex


one
Principles like these cannot be derived from the principles of logic,
and can be meaningfully denied. But if you deny a principle like
this, you will find it impossible to pursue knowledge and you wont
be able to get anywhere at all. Moreover, you can just seethat
these principles are true by looking around.
The basic goods are the same. They cannot be derived from Gods
law, or logic, or the inclinations of a human brain. But if you deny
them, you cannot get anywhere in the realm of practical reason,
and you cannot make decisions about what is best for your life.
And, just with theoretical principles, its obvious that these goods
are basic. In this way, the seven basic goods are self-evident.
It is important to make a distinction here. It is not true that
everyone is automatically aware of all the principles of theoretical
rationality a toddler may not understand amodus
ponens argument. But such principles are known to every
educated, mature person. In the same way, Finnis acknowledges
that there are people who do not respect the basic goods; its just
that those people are wrong.
The Nine Requirements of Practical Reason
One of the seven basic goods is practical reason. You participate
in this good by making rational decision that maximise your
participation in the other goods by choosing good projects to
pursue, by making moral decisions, and so on. In order to
correctly participating in practical reason, you need to fulfil nine
sub-requirements. These requirements are self-evident in the
same way that the basic goods are self-evident. The nine
principles are:
1.
You should view your life as a whole, and not live
moment to moment
2.
You naturally have to prioritise certain goods over others
(e.g. an academic would prioritise knowledge higher than a
tradie), but you should always do so with good reason. You
should never arbitrarily discount one of the basic goods.
3.
Basic goods apply equally to all people. You can be selfinterested to the extent that you are in the best position to
look after yourself, but you should always take into account
the good of others.

4.

5.
6.

7.

8.
9.

You should make sure that you do not become obsessed


with a particular project, and keep the perspective that the
project is a participation of a basic good.
You should actually do projects and make an effort to
improve dont just sit around or repeat old habits
You should calculate and plan your actions so that they
are the most efficient (in a utilitarian sense) and do the most
good.
You should never commit an act that directly harms a
basic good, even if it will indirectly benefit a different basic
good. For example, you should not kill even if it will indirectly
save more lives later.
You should foster the common good of the community.
You should act according to your conscience and
practical reason, not the authority of someone else.

Making Decisions using the Seven Goods and the Nine


Requirements
The seven goods and the nine requirements apply equally to
everyone. To make specific decisions in your life, you think
reasonably, in accordance with the nine requirements, and decide
how you will participate in the basic goods.
There is plenty of scope for discretion in this scheme. If you are
deciding what to do with your day, you could choose to listen to
music, or to go hiking, or to go to a party, or to volunteer for
disaster relief. These are all, in principle, valid choices. Some
choices arewrong, e.g. murdering someone, or spending all day in
an empty room doing nothing, but there are many equally correct
choices.
The seven goods are all equally fundamental, and do not exist in a
hierarchy. Therefore, although some acts are wrong (because they
do not participate in a basic good), there is no single correct act.
This is an important distinction between theoretical and practical
reason: in theoretical reason, if two statements contradict then at
least one of them must be false. In practical reason, there can be
two contradictory acts that are both morally correct choices. It is
up to a humans free will to choose which act they will adopt.
In this way, the seven goods and the nine requirements specify the
overarching structure and goals, but do not determine the
minutiae of day-to-day life, or even big decisions like the choice of
career.
The Common Good and the Need for Authority
Humans naturally need to live in groups. This is both required
expressly by the basic good of Sociability, and implicitly by all the
other goods, because we are most productive when we are working
together. Hence, one of the nine requirements of practical reason
is Contribute to the common good.
The common good is the situation where each member of the
community can effectively pursue the basic goods for themselves.
Like one of the basic goods, the common good is never achieved, it
is only participated in.
Authority
To best achieve the common good, certain acts need to be
performed by the wholecommunity rather than specific people.
Examples are respect for the rules of games, collaboration within
knowledge, spirituality within the community, or respect for each
others lives and safety. Such co
Such community-wide actions require coordination, and
coordination requires authority (not necessarily coercive
authority). Such coordinating authorities include churches, team
captains, university heads of department, and governments.
One of the basic goods is practical reasonableness. It is necessary
that every member of a society be able to make decisions for
themselves. Authority figures therefore need to compromise
between coordinating society effectively, and granting people the
ability to pursue their own ends in the manner they choose.
Natural Law
One of the strongest and most effective sources of authority is the
law, and therefore, Finnis concludes, law is a morally necessary
component of society.
How is the specific content of law morally determined?
Some laws directly serve basic goods (e.g. the law against murder).
Most laws however, are not so direct instead they create a stable
society in which people have the freedom and ability to pursue the
basic goods. Before, I said that each person is free to choose the

specific details of how they achieve the basic goods in the same
way, the authors of the law are free to choose the specifics of the
legal system. As long as the legal system is in service to the basic
goods and in accordance with practical reason, it is a morally
good legal system. Of course, some legal systems will be better
than others. A society deciding between legal systems is equivalent
to an individual deciding between conflicting moral decisions.
What features should a legal system have?
The law should bring specificity, clarity and predictability into
human interactions, and so it should obey public and precise
rules. These rules should also regulate the creation of new rules.
Finnis agrees with Lon Fullers eight requirements of the inner
morality of law, that laws should be:
1.
Prospective, not retroactive
2.
Possible to comply with
3.
Promulgated
4.
Clear
5.
Coherent
6.
Stable enough that people can use the law as a guide
7.
The making of new laws should be guided effectively
within the legal system
8.
People who have authority should be
A.
Accountable
B.
Consistent and acting in good faith
(These eight requirements are posed by Finnis, but agree closely
with Fullers requirements)
The Moral Force of Law
If you accept a legal system, then you have a legal obligation to
obey every law However, a legal system, when implemented
correctly, is a very important source of guidance for people, and
people have a moral obligation to obey the law. The argument runs
like this:

I ought to pursue the basic goods

Society needs to coordinate in order to best achieve the


basic goods

The law is an effective way of coordinating society this


way
Therefore:

I ought to obey the law.


Therefore you have both a legal obligation and a moral obligation
to respect and obey the law. The legal obligation is invariant in
force the law just has offences and sanctions; no offence or
sanction is legally worse than any other. The moral obligation has
different weight depending on the specific offense, because some
offences damage the legal system more than others. If a legal
obligation is in line with a moral obligation (e.g. Do not murder)
then you also have the non-legal obligation to not perform that act
for moral reasons.
In this way, the law is not just a coercive order. Certainly, in an
imperfect society, the law needs to be coercive in order to regulate
people who behave badly. These bad people follow the law in order
to avoid sanctions. But many people follow the law because they
believe that following the law is morally correct. In a perfect
society, there would be law without sanctions that functioned only
to coordinate people.
What about when the law conflicts with morals?
A classic interpretation of natural law is the doctrine of lex injusta
non est lex: that morally wrong laws are not laws at all. Finnis first
asserts that this is not the primary concern of a theory of natural
law the primary concern is discerning a system of common good,
and determing whether/how a legal system can best achieve that.
The issue of immoral laws is nonetheless worth discussing, and
Finnis does indeed discuss it.
I have already talked about how laws have both moral and legal
obligation. Finnis explanation of lex injusta non est lex is quite
simple: a morally unjust law imposes legal obligation, but no
moral obligation. Specifically, if we look at the argument from
before:

I ought to pursue the basic goods

Society needs to coordinate in order to best achieve the


basic goods

The law is an effective way of coordinating society this


way,
Therefore

I ought to obey the law.

If a law is immoral/unjust, we can reject premise number 3, and


so there is no moral obligation to obey the law. We still have the
legal obligation that we should obey the law if we want to avoid the
sanction. In this sense the law is still legally valid, but it is not
morally valid.
There is another consideration that can sometimes provide a
moral obligation to obey immoral laws. Imagine that an act X is
morally wrong, but is required by law. Since the law has moral
force, it is morally important to ensure that the law is stable.
Therefore citizens have a moral obligation to perform X for the
sake of not undermining the legal system, and legal officials have a
moral obligation enforce X for the same reason. This moral
obligation will not necessarily trump the moral obligation that X
not be performed, but it is possible that it will trump that
obligation. In this way, it can sometimes be morally correct to obey
the law, even if the law itself is not morally valid.
The Diagram
So where does Finniss account of law fit into the diagram? We
have already seen that the basic goods and the requirements of
practical reason exist in reality. However, the specific laws of a
society do not exist in reality they are not specified by the general
nature of the basic goods and requirements. However, the goods
and requirements grant laws moral validity, and this validity
is objective. If we accept Kelsens premise that laws are normative
statements (Finnis doesnt go into this, but it clears things up),
then natural laws are a set of correct normative statements. This
gives us:
Source: Finnis, J. (2011, first published 1980). Natural law and
natural rights. Oxford: Oxford University Press.

John Finnis has retired from his post at Oxford and this has led to
a great outpouring of books from Oxford University Press. These
include a five-volume collection of Finnis's essays, spanning topics
in ethics, political philosophy, jurisprudence and theology (2011a),
and a new edition of his magnum opus, Natural Law and Natural
Rights, including a postscript responding to critics (2011b). The
present volume continues this prolific output. It is a collection of
essays reflecting on Finnis's contributions to the above fields,
edited by two of Finnis's former doctoral students, and concluding
with a lengthy response by Finnis himself.
Finnis is one of the leading figures in the revival of classical
natural law thinking in ethics and jurisprudence that has
occurred since the 1980s. The broadly Thomist version of natural
law theory he developed in collaboration with Germain Grisez and
Joseph M. Boyle is widely known as the 'new natural law theory',
although Finnis disdains the label (468 n. 31). Anyone who is
interested in the new natural law theory should check out this
book. This is because the range of topics covered in the collection
provides an excellent snapshot, for better or for worse, of the
central concerns and debates characteristic of the new natural law
outlook.
The collection is divided into five parts. The first part, on reasons,
goods and principles, reflects upon the structure of the new
natural law approach to ethics. This is followed (for reasons I will
return to below) by a part dealing with the role of intentions in
determining the moral status of actions. The third part, on justice,
rights and wrongdoing, turns to questions of political philosophy
and bioethics, while the fourth deals with philosophy of law. The
final section consists of two essays on the connection between
natural law and religion.
This is an imposing book, covering a lot of ground. It made a
disheartening thud when it landed on my desk and I gazed upon it
balefully for several weeks before summoning the courage to crack
it open. The essays are generally of high quality, but one suspects
that only a few people will be interested in all of them. Finnis
himself is no doubt among this select number, which illustrates

the impressive breadth of his philosophical work and interests. I


fear I will try the patience of some readers just by mentioning all
the chapters, but here we go.
The new natural law theory offers an integrated framework for
dealing with philosophical questions in ethics, politics and
jurisprudence. The new natural law approach to ethics rests on
two fundamental ideas: first, the plurality of the basic forms of
good and the associated principles of practical reasoning; and,
second, the priority of the good over the right. The new natural
law ethics holds that there is a plurality of intrinsic goods, all of
which are basic and none of which can be reduced to any of the
others. Finnis identifies seven human goods in Natural Law and
Natural Rights, although he has since modified his account (cf.
2011a, vol. 3, 88).
The opening two chapters, by Joseph Raz and Roger Crisp, engage
critically with Finnis's account of the basic goods, raising
questions such as whether knowledge is inherently valuable and
the sense in which human goods can be regarded as self-evident.
The next two chapters, by John Haldane and Joseph Boyle, reflect
more broadly on the philosophical enterprise of reasoning about
human goods. Haldane links Finnis's methodology to
phenomenological approaches to value and reflects upon its
implications for public reason, while Boyle focuses on the role of
the 'integral directiveness of practical reason' in what Finnis and
his collaborators have termed the 'master principle of morality'
(56-7).

The first part concludes with a rather odd chapter by Jeremy


Waldron. The chapter raises the interesting question of what is
distinctive about natural law approaches to ethics. This question
has been widely discussed (e.g., Chartier 2009, 1-31; Murphy
2011; Crowe 2011 and 2014), but rather than engage with this
literature Waldron embarks on his own idiosyncratic reflection on
the implications of the term 'natural law'. 'Presumably', he
remarks, 'we should expect natural law to be law-like. It should
be like law' (73).
This suggests, for Waldron, that natural law ethics should
resemble positive law. He concludes from this that natural law
ethics should be deontic, in the sense of focusing on requirements
and prohibitions rather than reasons and goods; it should be
capable of being backed by some form of coercion; its
requirements and prohibitions should be accompanied by
ancillary principles; it should be separable from ethics and
morality; and it should gain shared recognition from those
individuals whose conduct it is supposed to regulate.
I am not aware of any actual natural law theorist who has applied
a similar set of criteria in defining natural law ethics. This does
not seem to bother Waldron, who goes on blithely to unpack his
criteria and criticise various influential natural law authors,
including Finnis, for not adequately meeting them. Why anyone
interested in natural law ethics should care about meeting these
criteria in the first place, however, is never made very clear.

The new natural law ethics holds that right action consists in
fitting responses to the human goods. The first of these fitting
responses is participation; the second is respect (Crowe 2011,
300). An agent participates in the basic goods when she makes
one or more of them the object of her actions. An
agent respects the goods when she refrains from acting
inconsistently with their value. It is not necessary that an agent
participates in all the goods equally at all times, but she must
always refrain from treating them as if they lacked intrinsic worth.

The new natural law theorists hold that it is inconsistent with


respect for the basic goods to deliberately harm one or more
goods. There is, in other words, decisive reason not to deliberately
harm any of the goods, even when doing so might forestall a
greater harm or bring about some benefit. This leads Finnis and
his collaborators to maintain the existence of absolute duties,
such as the duty not to kill an innocent person. A challenge then
arises from cases where it seems permissible to cause a harm to
bring about some greater good.
The new natural law response to this challenge relies heavily on
the doctrine of double effect (DDE). DDE holds that it is
sometimes permissible to cause a harm as a foreseen, but
unintended side-effect of a reasonable act, although it would not
be permissible to intentionally cause the same harm, either as an
end in itself or as a means to an end (Crowe 2012, 166-8). It
trades, in other words, on a robust distinction between foresight
and intention.

This framework unfortunately tends to result in unseemly


hairsplitting about intention. Finnis, for example, maintains that
a doctor who performs a craniotomy to save the mother's life does
not intend to kill the baby (480-5). Now, it is true that the doctor's
project is not to kill the child, but to preserve the mother's life.
Nonetheless, it strains credulity to say that when the doctor
crushes the child's skull, she does not intend the child's death.
Surely, if the doctor crushes the baby's skull knowing the baby
will die, she kills the baby to save the mother.
Finnis is obliged to say the doctor did not intend the baby's death,
because he believes there is an absolute prohibition on
intentionally killing innocent people. (The alternative would be to
treat the procedure as impermissible, but this is clearly not his
view.) This sort of reasoning is explored in the chapters by Luke
Gormally, Anthony Kenny and Kevin Flannery, while Cristbal
Orrego examines the overarching issue of how actions should be
understood and described. These chapters are clear and careful,
but replete with technicalities.
Practical reasoning is sometimes difficult and technical.
Nonetheless, I cannot help thinking that all this fine stuff about
intention reveals a flaw in the new natural law framework. It is the
price Finnis and his collaborators pay for their insistence on
absolute moral duties. It's not clear the price is worth paying. Why
not say that the duty not to directly harm the basic goods is very
robust, but less than absolute? This would yield a more nuanced
approach to practical reasoning, while helping to avoid the
strained distinctions mentioned above.
The next part of the book is about justice and rights. John
Gardner provides a typically subtle discussion of justice, arguing
that it is not the only or even the primary virtue we should
demand of social institutions, while Matthew Kramer engages
sympathetically with Finnis's retributivist theory of punishment.
Leslie Green then discusses limited government. He seeks to
clarify the various constraints that properly limit government
power,
distinguishing
upstream
constraints
that
hold
independently of arguments about the justifications for state
authority from downstream constraints that reflect the limits of
those justifications.

Green views what he calls the 'limited-government tradition' (188)


as focusing on upstream constraints according to which
government should always respect a protected sphere of individual
autonomy and observe the rule of law. These upstream
constraints set rigid boundaries on state action, as opposed to

considerations such as effectiveness that depend on downstream


investigations concerning the utility of government actions.

Green criticises Finnis's view that government should never take


over the formation, direction or management of the local
institutions of
civil society. Finnis treats this as an upstream constraint on the
role of the state, whereas Green argues the emphasis should fall
on practical considerations such as effectiveness and efficiency. I
am inclined to agree with Green, although I suspect he
underestimates the significance of these practical constraints for a
normative account of state institutions. He seems to think it is
pretty obvious that 'states are massively important institutions
with urgent tasks to perform' (194). That's not something we can
take for granted if we think states should only act where they
outperform other social mechanisms.
Christopher Tollefson's chapter also engages with the issue of
limited government, asking what limits flow from the perfectionist
orientation of the new natural law view of politics. Tollefson argues
that cooperative social groups need a coordinating authority to
function effectively (208-9). This echoes Finnis's argument
inNatural Law and Natural Rights that social coordination requires
'unanimity or authority. There are no other choices' (2011b, 232).
Law plays an essential role, on this view, by authoritatively
coordinating social action.
The problem with this argument, as I have pointed out before
(2013), is that it overlooks the role of social conventions in solving
coordination problems. Many social coordination problems -including extremely complex ones -- are solved by convention,
rather than authority. Language provides an obvious example. It
is arguable that many other such problems would also be solved
by convention in the absence of a centralised legal authority.
Tollefson, like Finnis, seems too ready to take the state's claims to
authority at face value.
The next chapter by Jacqueline Tasioulas and John Tasioulas
engages
Finnis's
interest
in
Shakespeare,
offering
a
jurisprudential reading of Measure for Measure. Patrick Lee then
examines Finnis's account of persons as subjects of rights. This is
followed by Gerard Bradley's closely argued chapter challenging
the framework of legal principles concerning the status of unborn
children that has emerged in the wake of Roe v Wade. Bradley's
chapter is the first of three dealing with Finnis's contributions to
bioethics. Anthony Fisher seeks to show how Finnis's approach to
bioethics is grounded in his theory of human goods, while John
Keown focuses on Finnis's engagement with issues arising at the
beginning and end of life.

The book then moves to philosophy of law. Finnis famously argued


in Natural Law and Natural Rights that in order to understand law
it is necessary to enquire into its purpose: why should we have
laws and legal systems at all? An analysis of the concept of law is
therefore an evaluative exercise: it involves identifying and
deploying that perspective from which law can best be understood
in light of its practical point (2011b, ch. 1). Finnis goes on to
argue that positive law that fails in its normative purpose -- to
promote the common good -- cannot be considered law in the best
and fullest sense of the term. It is legally as well as morally
defective.
Finnis's arguments about the essential role of normative ideas in
jurisprudence are considered in the chapters by N. E. Simmonds,
Timothy Endicott, Timothy Macklem and Julie Dickson. Endicott,
for example, engages with Finnis's claim that the central case of

law involves the pursuit of certain goods. He argues that, while


Finnis is correct about law's pursuit of goods, the distinctive
methods law uses to pursue these goods also entail certain ills,
such as waste, stupidity, conservatism and bureaucracy (338).
This, for Endicott, is the irony of law.
Maris Kpcke Tintur's chapter shifts the focus to Finnis's
accounts of legal and moral obligation. This is followed by a fairly
dense doctrinal chapter by Richard Ekins covering Finnis's work
on Commonwealth constitutional law. Neil M. Gorsuch then
returns to the role of intention in Finnis's theory from a criminal
law perspective. The final two essays consider the new natural law
theory's relationship to religion and theology. Thomas Pink
discusses Catholic doctrine on religious liberty, while Germain
Grisez argues that the normative force of natural law ethics is only
fully intelligible when placed in the context of theology.

The volume ends with a series of responses by Finnis and a


bibliography of his published works. Finnis's responses are
careful and thorough: they take up more than 120 pages. The
overall aim is very much to explicate and defend the positions set
out in his previous writings. There is, perhaps understandably, no
sense of urgency to break new ground. Finnis has, after all, spent
a long time working with broadly the same set of ideas and
methodologies. He is a hedgehog, not a fox. His focus is on
patiently sorting through the details.
The collection as a whole has the same general feel of tying up
loose ends. It aims more at engaging insiders than winning
converts. This conservatism is reflected in the choice of authors.
There is an abundance of Oxbridge dons and a plethora of
Catholics. There are very few women (only three out of thirty
contributors). I would have liked to see contributions from some of
the more innovative philosophers working within the new natural
law framework, such as Mark Murphy (2001; 2006) and Gary
Chartier (2009; 2013), or authors who have engaged with the new
natural law theory and then moved beyond it, such as Timothy
Chappell (1998; 2009).
The collection could also have benefited from encouraging
connections with other views that share common ground with the
new natural law position, such as Martha Nussbaum's capabilities
approach (2001) or John Mikhail's work on universal moral
grammar (2011). As things stand, however, the collection is clearer
on the current state of the new natural law theory than its future.
I have argued elsewhere that the future of natural law tradition
lies in embracing its philosophical diversity (2011), but this book
does not reveal a similar vision.
In summary, then, the book contains many examples of clear,
patient and technically competent work. It covers an impressive
range of topics, reflecting Finnis's diverse interests. There are
some valuable reflections on the strengths and limitations of the
new natural law outlook. Ultimately, however, the whole thing is a
bit too cosy for my liking.

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 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
1.
The Project of Conceptual Jurisprudence
2.
Classical Natural Law Theory
b. The Substantive Neo-Naturalism of John Finnis
c. The Procedural Naturalism of Lon L. Fuller
d. Ronald Dworkin's "Third Theory"
e. 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 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 III, 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.

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.
b. Classical Natural Law 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,

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 (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 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.

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 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.

10

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).

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:

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 coordination 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."

4. The Procedural Naturalism of Lon L. Fuller


Like Finnis, Lon Fuller (1964) rejects the conceptual naturalist
idea that there are necessarysubstantive 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:

(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

11

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 evenhanded 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.
5. 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, 185186).
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

12

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.

13