+(,121/,1(

Citation:
William Lucy, Natural Law Now, 56 Mod. L. Rev. 745
(1993)

Content downloaded/printed from HeinOnline

Fri Feb 2 11:59:05 2018

-- Your use of this HeinOnline PDF indicates your acceptance

of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from

uncorrected OCR text.

-- To obtain permission to use this article beyond the scope

of your HeinOnline license, please use:

Copyright Information

Use QR Code reader to send PDF to

your smartphone or tablet device
 REVIEW ARTICLES
Natural Law Now
William Lucy*

Robert P. George (ed), Natural Law Theory: Contemporary Essays, Oxford:

Clarendon Press, 1992, xi+371 pp, hb £30.00.

I Why Bother?
One could be forgiven for thinking that natural law doctrine has nothing but a past.
That past may be thought historically and sociologically interesting, charting, as it
does, the ebb and flow of theological thought and power; predating, yet being
conjoined with, the development of the modem state and its law. Moreover, a
genealogy of this body of thought, elucidating whatever influence it had or has
upon particular social practices, and the effects those practices had or have upon
that body of thought, could yield further insight into the pervasiveness of power
within both the social structure and the human or social sciences. ' Alternatively,
that past could be examined so as to show that the concerns of this tradition of
thought throw light upon other contemporary practical and intellectual problems:
ignoring our history will lead to a misunderstanding of the present. For example,
we might understand better the apparently endless perplexity and controversy
which moral judgments generate in our culture by reference to the historical
displacement of the social and intellectual conditions that allegedly make such
judgments possible and conclusive. 2 Similarly, an account of the concerns of the
tradition of thought we know as natural law, and an account of the displacement of
the conditions that made particular responses to those concerns conclusive, could
provide us with a diagnosis of, for example, our apparent inability to determine
whether or not there is a moral obligation to obey the law. Both approaches bring
with them more or less explicitly formulated methodological and epistemic
injunctions, laying down the way in which our studies ought to be structured and
what results we can expect them to yield. Both approaches agree that our studies
ought not to track truth - where 'truth' means the attempt to seek secure
foundations for our knowledge, values and beliefs - but should instead report
local practices or tell edifying and empowering stories.
Though the roots of these two approaches are far from new (Foucaultian
genealogies seem to take us back to Nietzsche while contemporary accounts of
traditions owe a great deal to Aristotle and Collingwood), they are currently
*Law School, University of Hull.
Thanks to Patrick Birkinshaw for helpful comments on this essay. Of course, the remaining weaknesses are
all my fault.
I See M. Foucault, The Archaeology of Knowledge (London: Tavistock, 1972) and Discipline and
Punish (London: Penguin, 1979).
2 This is the main burden of A. Maclntyre's work. He suggests that a return to an Aristotelian account of
the virtues, and the social and cultural conditions which made such an account compelling, will lead us
out of the impasse of contemporary ethical thought: see his After Virtue (London: Duckworth, revised
2nd ed, 1985) chs 4, 5, 6, 9 and 18, and Three Rival Traditions of Moral Inquiry (London:
Duckworth, 1990) chs 2, 5 and 9.
© The Modem Law Review Limited 1993 (MLR 56:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 IJF and 238 Main Street, Cambridge, MA 02142, USA. 745
The Modern Law Review [Vol. 56

enjoying a second wind in the academy. However, the majority of essays in this
collection are not contemporary in that sense - although those by Joseph Boyle
and Russel Hittinger examine the assumed conflict between natural law theory and
those contemporary ethical theories that emphasise the importance of traditions
and the virtues, while Jeffrey Stout offers an account of natural law which appears
influenced by contemporary philosophical pragmatism. The essays are
contemporary in that they are by authors who have recently said things about
natural law and who, on the whole, share an assumption that the concerns of the
natural law tradition are also our concerns, here and now, as members of particular
communities defined by perhaps unique cultural, economic and institutional
circumstances. This approach to a tradition of thought is often regarded as
unhistorical, and in a clear sense it is. For without any attempt to determine the
historical, intellectual and social conditions which made the questions raised by
proponents of this tradition intelligible, and without any demonstration that those
conditions hold for us as they held for them, the assumption that our and their
questions are the same looks vulnerable. Furthermore, the hermeneutic and
epistemic problems of trying to formulate what exactly were the concerns of the
exemplars of the tradition are either ignored or given slight attention. This is the
case even in the essays most heavily reliant upon exemplars of the tradition -
Aristotle, Aquinas and Cicero - by Boyle, John Finnis and Hedley Arkes. This
rather cursory approach to the history of natural law thought could be forgiven if
the essays in the volume, in their attempts to affirm and reconstruct the concerns of
the natural law traditions as our concerns, succeed in improving our understanding
of them.
From the evidence of this volume, it appears there are three such concerns.
First, the tradition seems often to have addressed the nature and basis of morality
in order to determine how life ought to be lived. Even if one ignores the philosophy
journals, in the belief that philosophical moral thinking does more harm than
good, 3 contemporary debates about the ethics of various distributions of health
care, or about the permissibility or illegitimacy of abortion or of types of
discrimination, suggest that for us, just as for traditional exponents of natural law,
the question 'what shall we do and how shall we live?' is a live one. 4 However,
the answers to this question considered in these essays differ from the answers of
many representatives of the natural law tradition in one very obvious way: they are
secular and not theistic.
The second concern consists of the attempt to relate answers to the question
'how shall we live?' to the exercise of power and authority in a community. This
concern requires consideration of: the legitimacy of the use of force by those
groups or institutions strong enough to exercise some de facto power (such as the
Church or state); the moral claim, if any, such exercises of power have upon us;
and of the ways in which such exercises of power track justice or the good. At this
particular time, in our particular circumstances, this concern is also a familiar one.
Even setting aside the law journals (assuming legal philosophy to be as dubious as
moral philosophy), issues of whether or not we ought morally to obey the law and

3 This seems to be the view of B. Williams, Ethics and the Limits of Philosophy (London: Fontana,
1985): 'reflective criticism should basically go in a direction opposite to that encouraged by ethical
theory' (p 116).
4 The question is Tolstoi's: quoted in M. Weber, 'Science as a Vocation' in H.H. Gerth and C. Wright
Mills (eds), From Max Weber (New York: Oxford UP, 1958) p 143.

@ The Modern Law Review Limited 1993

September 1993] Natural Law Now

what, if any, relationship it has with morality, are staples of our culture, a standard
topic for late night discussion programmes.
The final concern is with issues of epistemology and method, with determining
the best way to respond to the two previous concerns and determining the status of
those answers (Do they count as knowledge? Are they the best answers we can get?
Why should we accept and how should we choose between them?). Issues such as
these are addressed in a number of the essays, usually in the course of formulating
responses to the first two concerns. Again, this appears to be a preoccupation of
our philosophical culture at this particular time, just as much as it was a concern of
representatives of the natural law tradition such as Aristotle and Aquinas. Beyond
philosophy journals this concern appears in our culture obliquely, in disputes
about, for example, artistic representation or literary interpretation. 5
My discussion is organised around these three concerns: I attempt to determine
how well most of the essays deal with them. My discussion mirrors the emphasis
of the collection in two ways. First, the majority of the essays have more to say
about the first concern than the second. If you cannot think of natural law without
thinking of the separation thesis, a component of the second concern, then this
collection will disappoint you. Second, I, like the majority of contributors, do not
discuss the third concern separately but only when it arises in responses to the
other two.

II What Shall We Do and How Shall We Live?

A good secular statement of the natural law account of the nature and basis of
morality is provided by Boyle in the first essay of the volume. Morality is:
a set of universal prescriptions whose prescriptive force is a function of the rationality which
all human beings share in virtue of their common humanity. The basic principles and norms
of natural law, as natural, are addressed to all human beings, and they are held to be
accessible to all who are capable of forming the concepts which comprise them.
Furthermore, the foundations of moral life and judgment are in the moral law, and moral
laws are propositional realities, 'dictates of reason,' not character traits, practices, or
cultural creations. These fundamental prescriptions of the natural law are held to have sense
and reference, and indeed to be truths of a kind (p 4, emphasis in the original). 6
This captures well the aspirations of a secular natural law theory and is a statement
few of the contributors to this volume would reject. However, disagreement arises
over whether or not this aspiration can ever be realised in a way which avoids
dubious epistemological and metaphysical commitments. The essays by, inter
alios, Jeffrey Stout, Jeremy Waldron and Lloyd Weinreb express doubts, although
based upon very different grounds, about the possibility of accomplishing that
task. Before examining them, the essays by Boyle and Hittinger deserve attention.
Boyle and Hittingcr examine the relationship between the natural law traditions
of ethical thought and those ethical theories with which the tradition is assumed to
be incompatible. One ethical theory of the latter type, best exemplified in the work
of Alaisdair MacIntyre, 7 emphasises the importance of traditions and the virtues.
MacIntyre holds that:

5 See, for example, E.H. Gombrich, J. Hochberg and M. Black, Art, Perception and Reality
(Baltimore: Johns Hopkins, 1972); A. Barnes, On Interpretation(Oxford: Blackwell, 1988).
6 All references in parentheses in the text are to pages in the volume under review.
7 See above n 2.

@ The Modem Law Review Limited 1993

The Modem Law Review [Vol. 56

[t]he virtues . . . are to be understood as those dispositions which will not only sustain
practices and enable us to achieve the goods internal to practices, but which will also sustain
us in the relevant kind of quest for the good, by enabling us to overcome the harms, dangers,
temptations and distractions which we encounter, and which will furnish us with increasing
self-knowledge and the increasing knowledge of the good. The catalogue of the virtues will
therefore include the virtues required to sustain the kind of households and the kind of
political communities in which men and women can seek for the good life together. 8
Traditions are important for Maclntyre because they make explanation and
understanding of social action possible, constitute our identity and embody - in
the idea of practices, a species of tradition - some of the virtues. Moreover,
access to some of the virtues is only possible through a community's practices and
those practices and traditions define one's identity and moral horizons: '[t]he story
of my life is always embedded in the story of those communities from which I
derive my identity'; '[w]hat I am therefore, is in key part what I inherit. . . I find
myself part of a history and one of the bearers of a tradition.' 9
. . . Boyle wants
'to determine in what ways natural law and natural law theorising are tradition-
dependent, and whether key natural law claims are compatible with recognition of
these sorts of tradition-dependence' (p 5). Hittinger's question is how far 'theories
of natural law and of virtue operate in contemporary literature at cross purposes'
(p 45). Of the two, Boyle provides the more successful answer to the question
posed.
Boyle offers an admirably tidy analysis of three senses of tradition-dependence,
the third having most in common with Maclntyre's account of tradition and the
virtues. The first sense is unavoidable but poses no problem for proponents of
natural law. Any kind of thinking and any kind of intelligible activity, be it
scholarly pursuits or playing football, takes place within a specific linguistically
formulated, rule-governed context. Within that context, we find 'the set of
concepts available for use in theory and the modes of expression which make
possible the creative use of these concepts,' as well as a 'cultural patrimony' of
ideas, questions and controversies (p 5). A second sense of tradition-dependence
exists when those engaged in a particular scholarly enquiry 'recognise themselves
to be developing a body of thought which prior thinkers have originated and
developed but left incomplete' (p 7). Obviously, this situation seems to fit well
many of the essays in this volume and natural law thinking at large. Yet, again, this
kind of tradition-dependence is no problem for proponents of natural law.
This is because critical assessment of any kind of traditional social practice is not
impossible if either kind of dependence is true. The fact that natural law thought
depends for its intelligibility upon a background of shared language, ideas and
texts, which can plausibly be called a 'tradition,' does not prevent proponents of
natural law criticising either that tradition or the other social practices (perhaps
themselves plausibly called 'traditions') in various communities. Thus, natural law
thinkers can consistently reserve for themselves the option of taking up a critical
posture towards the practices and traditions of particular communities while
accepting the truth of tradition-dependence in Boyle's first two senses. The third
sense, however, does seem to impede whatever critical posture natural law thought
might take up on the 'lived ethical experience of people who share a common way
of life' (p 9). It holds that ethical enquiry can only make sense when it is rooted in
such shared experience; the existence of a moral community is a prerequisite for

8 Maclntyre, After Virtue, p 204.

9 op cit, pp 205-206.

© The Modem Law Review Limited 1993

September 19931 Natural Law Now

ethical inquiry to be intelligible. '0 Hence it might seem that, if the kind of ethical
inquiry characteristic of natural law thought were tradition-dependent in this way,
then the moral injunctions that body of thought offered could never escape the
constraints of a common way of life. That common way of life would set the
parameters within which natural law ethical inquiry would be possible and
intelligible. Ethical inquiry could never attain a critical 'external' perspective on
that way of life but could only offer instead an immanent critique of it. The
perspectives for critically assessing a way of life must be drawn from the resources
of that way of life; there are, after all, no archimedian points."
Boyle's response to this is a denial, supported by two arguments (pp 9- 18).
The first consists of pointing to standard forms of moral argument and criticism
that stand independent of a background of shared ethical values yet remain
intelligible. If Boyle is right on this, something familiar becomes more intelligible;
namely, the criticism of a commuity's positive morality from the perspective of a
critical morality. It is not that the third sense of tradition-dependence makes this
impossible - just much more difficult than it seems to be, since it holds that a
critique of positive morality can only be made from within the perspective of that
morality. The questions which therefore arise from it are these: Is that the kind of
argument moral reformers must always make? Is that the structure of all feminist
critiques of existing community values? Were all moral arguments against slavery
in ante-bellum America of this kind? In so far as affirmative answers to such
questions seem implausible, then so too does the third type of tradition-
dependence. Boyle's second argument relates to the virtues and is the same as one
made by Alan Gewirth which Hittinger's essay in this volume attacks. I therefore
discuss it in my treatment of that essay. The remainder of Boyle's essay
(pp 19-28) attempts to make sense of moral diversity and controversy. This is a
problem - though not a large one - for natural lawyers in so far as they are
almost invariably either moral realists or moral rationalists. Since this issue also
occupies Stout and Waldron, I deal with Boyle's account when I examine theirs.
Hittinger is reasonably successful (though not, I think, in the way he intends) in
showing that there is not a real debate between natural law and virtue theory.
One's initial impression is that the two traditions are talking past one another, since
they appear concerned with qualitatively different issues. As we have noted, for
Boyle natural law thought is concerned with 'universal prescriptions' binding on
all (in Hittinger's terms, the articulation of 'basic human goods or needs': p 42).
Virtue theory is more concerned with the nature of a good or excellent life, a
matter which, while perhaps not totally supererogatory, seems less pressing than
determining the basic requirements of how we should live. Yet natural law thought
is not dismissive of virtue talk. As Boyle notes (p 14), natural law thinkers such as
Aquinas took the virtues very seriously. They hold, however, that the virtues are
in a sense derivative from, or less important than, the basic moral requirements.

10 While it is clear that Boyle has MacIntyre in mind, he rarely bothers giving chapter and verse. For
sceptics, here is a representative statement from Maclntyre: '[gloods, and with them the only grounds
for the authority of laws and virtues, can only be discovered by entering into those relationships which
constitute communities whose centralbond is a shared vision of and understandingof goods' (After
Virtue, above n 2, p 240, emphasis mine).
11 This I take to be a non-controversial characterisation of a 'Wittgensteinian' position: 'What has to be
accepted, the given, is - so one could say - forms of life' (L. Wittgenstein, Philosophical
Investigations (Oxford: Blackwell, 1985) p 226, emphasis in original). For the working out of a
position like this in ethics, see S.E. Toulmin, The Place of Reason in Ethics (Cambridge: Cambridge
UP, 1950) ch II.

@ The Modern Law Review Limited 1993

The Modem Law Review [Vol. 56

This move is one which, as Hittinger notes (p 52), Gewirth (who has an
ambivalent relationship with the natural law tradition) also makes. Moreover,
Hittinger persuasively shows that one virtue theorist's attack upon the natural law
enterprise of determining basic human goods backfires. According to Hittinger
(pp 57-62), Edmund Pincoffs' virtue theory is built upon a rejection of the
reductionist tendencies of 'standard' moral theories (amongst which we must
include many versions of natural law). However, in offering an account of the
virtues in functionalist terms, as 'those qualities which permit a person to work
well' (p 60), Pincoffs falls victim to the reductionism he explicitly seeks to avoid.
Hence, his attack upon natural law is an example of being at cross-purposes.
Where Hittinger's argument goes wrong is in his attempt to show that Gewirth's
response to virtue theory is also at cross-purposes. The response, part of which is
echoed by Boyle and Aquinas, plausibly argues that Maclntyre's account of the
virtues 'leaves indeterminate what is central to, or in any case what is the first
problem of, moral theory: namely, resolving whether types of actions satisfy or
violate a specifically moral rule' (p 48). Of concern here is not the power of this
argument against Maclntyre but: (i) the relationship between an attempt to solve
the 'first problem of moral theory,' an enterprise characteristic of natural law
thought, and a plausible account of the virtues; and (ii) setting aside Gewirth's
account of the virtues, the power of his solution to the 'first problem.' On both
issues Hittinger errs.
The first issue is also a problem for Boyle, if it is true that his account of the
tradition-independence of moral argument and criticism leads him to offer an
emaciated account of our moral thought and experience. Such accounts of the basic
requirements of morality miss something fundamental; namely, the virtues, and
because of that lacuna they are bound to fail. This argument is pressed by Hittinger
against Gewirth's attempt to determine the fundamental prescriptions of morality,
which allow us in turn to determine whether or not conduct satisfies or violates a
moral rule. For Hittinger, Gewirth's argument has the prohibitive cost of 'either
excluding the virtues or of including them in a reductive way' (p 65). It is false to
say that Gewirth excludes the virtues: as Hittinger notes (p 52), but seems to
forget, Gewirth does indeed make room for virtue talk just as do many in the
natural law tradition (see Boyle's essay, pp 13- 15). Moreover, whether or not the
account offered by Gewirth (or natural lawyers such as Aquinas and Boyle) is
reductive is never compellingly established by Hittinger. It could only be so
established were Hittinger to offer a primafacie plausible account against which
Gewirth's and other natural lawyer's treatment of the virtues could be measured.
He offers no such account. The only accounts of the virtues that appear in
Hittinger's essay are those of Maclntyre and Pincoffs. The former account is one
that, as Gewirth shows, has no determinate answer to the question, 'is the tradition
of the Afrikaner community, which requires the subjugation of millions of blacks'
(p 49), a virtuous one? For that reason alone it surely fails to reach the threshold of
primafacie plausibility. Pincoffs' account is also less than plausible since it ends
up affirming an approach to moral thought which it explicitly seeks to deny. It is
therefore difficult indeed to see from where Hittinger could derive the kind of
account of the virtues he needs. Until he offers more than this, his arguments must
remain indeterminate.
The motive behind Hittinger's three arguments (pp 53-56) against Gewirth's
solution to the 'first problem' seems to be this: the account of the virtues Gewirth
derives from his substantive moral theory will be weakened if that theory is

© The Modem Law Review Limited 1993

September 1993] NaturalLaw Now

implausible. However, Hittinger's arguments to demonstrate the implausibility of

Gewirth's moral theory are weak. The first raises this question for Gewirth: 'how
can we be assured that [his solution to the 'first problem,' his substantive moral
theory] is not itself a tool of a certain kind of society which requires humans to
serve its peculiar institutions?' (p 53). Hittinger thinks Gewirth can provide such
an assurance because his argument invokes rights to freedom and well-being. If all
purposive agents have such rights, then they will be 'minimally protected against
distortive institutions and policies' (ibid). For Hittinger, this argument is
unpersuasive because he mistakenly thinks there is 'no apoditic ground but rather
only historical and social ones' (ibid) for invoking these rights. That this is a
mistake is obvious. Gewirth's argument is a dialectically necessary one showing
that for purposive agency to be possible, freedom and well-being must be
respected. If freedom and well-being are just optional extras, purely historically
contingent, then it must be possible to conceive purposeful agency in their
absence. Yet what would an example of an agent pursuing her purposes without
having either her freedom or well-being look like? I, for one, cannot imagine.
Hittinger's second argument may be thought to provide an answer but it does not.
It is the 'old saw' (p 54) of noting that agents often act in ways which sacrifice
their freedom and well-being (think, for example, of suicide or more noble self-
sacrifice). While this is undoubtedly an old saw it is, contrary to Hittinger's belief,
far from a 'good one' (ibid). The reason being, you need some degree of either
freedom or well-being in order to act contrary to them. Take suicide again: would
it be possible were one permanently kept catatonic through the administration of
drugs or constantly kept under hi-tech surveillance? Surely not. Thus, the fact that
agents can 'allow their freedom and well-being to be diminished, for the sake of
so-called higher goods' (ibid) does not reduce, but rather affirms, the power of the
argument about the necessity of those basic goods. Hittinger's third argument is
the weakest. It is stated only en passant and alleges that moral theories such as
Gewirth's 'confuse legal and moral indices for behaviour' (p 55). The weakness
lies in the fact that Hittinger never actually demonstrates this.
The essays by Stout and Waldron seek to show, albeit on very different grounds,
that the attempt to construct a natural law account of morality along the lines
suggested by Boyle is metaphysically and epistemologically dubious. Such an
argument also plays a minor role in Weinreb's essay.
Stout offers three reasons to show this. First, the 'metaphysical costs' (p 72) of
that enterprise are too high; it has too many 'dubious metaphysical trappings'
(ibid) and 'questionable metaphysical commitments' (p 87); it is 'metaphysically
tainted' (p 96), leading to what Edmund Burke called a 'Serbonian bog' (p 84).
Secondly, natural law thought about morality entails 'a quest for system' (p 96),
and such a quest has dire consequences upon moral life and experience. Thirdly,
natural law accounts of morality make use of the rather dubious notion of moral
truth. The weakness with the first reason is that Stout never articulates why he
thinks we ought to share his phobia about metaphysics. There have been, of
course, a number of attempts to 'prove' the falsity of all metaphysics, the most
obvious being the argument of logical positivists that metaphysical talk is disguised
nonsense. 12 That argument, however, was itself a spectacular failure, resting
upon a principle defining the limits of knowledge - as consisting of either that
knowable empirically or that knowable linguistically a priori - which looked

12 In the English-speaking world, the classic text is A.J. Ayer, Language, Truth and Logic (London:
Penguin, 1971) chs 1 and 6.

@ The Modern Law Review Limited 1993

The Modern Law Review [Vol. 56

suspiciously metaphysical (it was certainly neither an a priori nor empirical

principle). Clearly, we cannot suppose that this kind of argument underlies Stout's
phobia. He might instead, as his treatment of the notion of moral truth suggests,
trace the roots of his phobia to some contemporary version of philosophical
pragmatism. 3 If this is the case, then the problem is that the argument for
pragmatism is not put forward - nor even described in tempting terms - in the
essay. In the absence of such supporting argument, Stout's first reason is
unpersuasive.
What, then, of his other two reasons? The second is a composite argument Stout
draws from Bernard Williams and Annette Baier.' The questions to ask of it are
disarmingly simple: is philosophical moral thought, in its effort to systematise and
explicate moral experience and thereby solve moral problems, really such a
dangerous activity? Are its effects upon moral life and discourse really so bad? The
problem is that no attempt is made to sketch out the link between the one thing and
the other. From Baier we get hunch and affirmation. She claims, for example, that
teaching ethical theory breeds generations of ethical sceptics (p 86) without
explicating how ethical theory's systematising of moral life and experience leads to
this. Furthermore, it surely depends on the type of ethical theory: while Nietzsche
might lead us to scepticism, would Gewirth? Although Stout seems satisfied with
this, we ought not to accept it in lieu of argument. Nor should we accept without
further argument Stout's additional point that, although philosophical moral
thought is supposedly dangerous, aspects of it like just war theory have 'done some
good' (p 86). This is unacceptable because it is supported only by the bald
assertion that sometimes the consistency and systematicity of moral theory might
be 'desirable' (p 86). This leaves all the interesting questions unanswered.
Stout's third reason provides an opportunity to examine an issue that appears
centre stage in Waldron's essay, is the starting point of the essay by Michael
Moore and which was left on the sidelines during our discussion of Boyle's essay.
The issue concerns the problems of moral realism and moral rationalism, the
assumption being that natural law accounts of the nature and basis of morality lead
to one or the other. This does not seem unreasonable in light of Waldron's
characterisation of moral realism which, for the sake of argument, we will accept:
'[t]here are facts which make some moral judgments . . . true and others false,
facts which are independent of anyone's beliefs about the matters in question'
(p 158). This seems to fit aspects of Boyle's description of the natural law
approach. However, other aspects of that description are equally compatible with
moral rationalism, which holds that some moral beliefs or a fundamental moral
principle can be rationally established, and hence that there can be a substantive
rationality of ends, without indulging in the fast and loose 'fact talk' characteristic
of moral realism. Assuming that natural law accounts of the nature and basis of
morality do indeed lead in one or other of these directions, why should the natural
lawyer be embarrassed about it?
Stout's answer holds that if natural lawyers are moral realists, then they are
committed to a dubious notion of moral truth. If you are a moral realist, according

13 The most influential contemporary exponent of which is R. Rorty. See, for example, his Consequences
of Pragmatism (Minneapolis: University of Minnesota Press, 1982). There are, however, very few
references to Rorty in Stout's essay.
14 I am a little uneasy about running Williams' arguments together with Baier's because they appear
much less extreme. Stout also seems to appreciate this when he observes that ethical theory, according
to Williams, is 'played at the wrong level of generality and ambition' (p 84). That is a much weaker
claim than some of the claims made by Baier. See B. Williams, above n 3, ch 6.

© The Modern Law Review Limited 1993

September 1993] Natural Law Now

to Stout, you must hold that moral propositions are true by virtue of their
correspondence with some thing or feature of the world. Holding this ensures that
cone's ethical theory [is] dependent on questionable metaphysical commitments'
(p 87) and commits one to 'a theoretical explanation or definition of moral truth'
(p 88). Of course, this is a problem only if one shares Stout's phobia about
metaphysics and accepts on trust the claim about the dangerous consequences of
philosophical theory. If, for the sake of argument, we do accept those
unsubstantiated points, it becomes plain that Stout has created for himself two
large snags. For he wants to accept the cautionary use of true (truth is not
necessarily a function of belief: p 82) while rejecting theoretical accounts of truth.
He maintains that we must take 'science and its characteristic uses of "true" at
face value' (p 96). So too in relation to moral truth: we must 'accept ... the
various uses of "true" as legitimate moves within ordinary moral discourse'
(p 88). The first snag is that the cautionary use of 'true' surely appeals beyond the
parameters of ordinary moral or scientific discourse, because it is an attempt to
criticise such discourse. The structure of the cautionary use is this: we might
believe such and such to be the case, but that is no guarantee that it is. Is not the
notion of truth being appealed to here one that is inter- and not intra-systemic? That
is, the cautionary use surely appeals to a notion of truth beyond the parameters of
some of our existing discourse. It holds that our discourse does not necessarily
track truth. And that surely entails some 'theoretical' account of truth. The second
snag has exactly the same content and structure as the first. It just draws attention
to the consequence of accepting as morally true whatever is said to be morally true
within ordinary moral discourse. On this view, saying that something is morally
right or wrong amounts to claiming that is what we do/don't do around here. This
is completely disempowering, making moral criticism almost impossible (this is
also noted by Boyle: pp 17- 18). It is thus no exaggeration to say that Stout's
argument against moral realism causes more problems than it purports to solve.
Waldron offers two arguments to embarrass the natural lawyer who is also a
moral realist, the first of which appears powerful. It holds (pp 167- 171), inter
alia, that the moral realist cannot offer a satisfactory account of the way in which
the truth of moral facts can motivate us to act: '[slince moral properties are just
factual properties . . . it is hard to see why their recognition should indicate any
willingness to act in any particular way' (p 168). The anti-realist, Waldron claims,
does a better job in explaining moral motivation. The apparent power of this
argument might be reduced, though moral realism not thereby strengthened, if two
points are noted. First, in some circumstances knowledge of factual properties
does appear to motivate us to act: were Waldron to receive five cents change from
a dollar when he buys a fifty cent chocolate bar, that 'factual' knowledge would no
doubt lead him to return to the vendor. This point cannot help the moral realist a
great deal because Waldron's reply could be an emotivist one: I went back because
I wanted my money. Hence it could be said that desire is doing the motivating
work here, not awareness of factual properties. For the counter-example to work,
the moral realist's task is a clear and, in principle, possible one; namely, to
displace or supplement the role of desire. Moreover, and this is the second point,
some moral rationalistsclaim to have succeeded in doing this.15

15 See A. Gewirth, 'Can Any Final Ends Be Rational?' (1991) 102 Ethics 66, at 68: 'reason can be
practical in that it can both ascertain for what ultimate ends persons ought to act and motivate persons
to act' (emphasis mine).

© The Modem Law Review Limited 1993

The Modem Law Review [Vol. 56

Waldron's second argument (pp 171- 176) can be called an argument from
controversy. It purports to embarrass both moral realists and moral rationalists but
it is not a logically compelling critique. If you hold (like Boyle and other natural
lawyers) that there are moral truths knowable to all or most human beings, or (like
Gewirth) that a rationally compelling argument, intelligible to all purposive
agents, can be provided for a fundamental moral principle, then the question you
face is: why is there so much moral disagreement? This cannot be a rejection of
either moral rationalism or moral realism because the mere fact of controversy
tells us nothing about whether or not there are moral facts or whether or not there
are rationally compelling moral principles. Similarly, the fact that there was
controversy prior to 1930 about the existence of a ninth planet told us nothing
about whether or not there was such a planet. In essence, controversy about the
fact of the matter does not indicate that there is no fact of the matter to be found.
Accepting that, however, the problem raised for moral realists or rationalists is
still to provide some account of moral controversy. Boyle provides a persuasive
account (pp 18-28), but it does not hit directly at the substance of Waldron's
argument.
Waldron argues that 'moral disagreement remains a continuing difficulty for
realism . . . so long as the realist fails to establish connections between the idea of
objective truth and the existence of procedures for resolving disagreements'
(p 173). There are, says Waldron, agreed ways in which controversy is dealt with
in the practices of natural science that are completely absent among moralists. On
the face of it, and notwithstanding Waldron's caveat that '[t]he point has to be
stated carefully' (ibid), this argument seems extremely dubious. First, why should
we think that the fact that there is a widely shared, agreed methodology for
discovering scientific 'truths' actually takes us closer to truth? The mere fact of
consensus on method cannot be taken as a demonstration that our methods track
truth. For example, the fact that all members of a community happen to think the
best and only method to discover whether or not one of their number has
committed a crime is to subject her to Damiens style torture, 16 does not show that
to be an effective way of tracking truth, of determining whether or not a crime was
actually committed by that particular person. Consensus is not necessarily a good
guide in these matters. Second, Waldron concedes that there is just a different
degree of agreement about ways of resolving moral disputes, on the one hand, and
scientific disputes, on the other. Universal agreement is lacking in both spheres
(ibid). Yet Waldron proceeds to exaggerate those differences of degree. Of
moralists, he says that 'unlike their counterparts in the scientific community they
share nothing by way of an epistemology or a method' (p 174). This ignores the
fact that there are realist, conventionalist and positivist conceptions of science with
competing accounts of method and epistemology. 17 My hunch is that Waldron is
impressed not by the degree of agreement among scientists regarding how to
resolve their disputes, but by the fact that science seems to work. That need not tell
us much, if anything, about epistemology and method.
Of the remaining essays that address the first and third concerns, none do so in a
way that requires much discussion. Moore's essay shows that he is a moral realist,
although he does not offer a defence of that view against the arguments of Waldron
and Stout. Needless to say, some defence is required. Rather, Moore's task in this

16 An account of which is available in Foucault, Discipline and Punish, above n 1, pp 2-6.

17 See, for example, R. Keat and J. Urry, Social Theory as Science (London: RKP, 1982) and W.H.
Newton-Smith, The Rationality of Science (London: RKP, 1981).

@ The Modern Law Review Limited 1993

September 1993] Natural Law Now

essay, despite his starting point, is better treated in the following section. Part of
Weinreb's essay rehearses an argument he has already made against some
contemporary versions of natural law. i" He thinks that they have no real
foundation in 'nature,' which he interprets as the natural world beyond human
beings, and that they depend upon the dangerously weak foundation of 'self-
evidence.' They are therefore epistemologically and metaphysically dubious: were
these versions of natural law rooted in the natural world, they would yield
knowledge of a more dependable kind than that produced by arguments of self-
evidence. Robert George's essay again makes use of arguments made elsewhere 9
to refute Weinreb's two claims. The only doubt which hangs over the refutation is
this: does George's argument to show that contemporary versions of natural law
depend upon some account of human nature (pp 34-36) capture what Weinreb
has in mind by nature or naturalorder(pp 297-301) or natural world? I suspect
that the answer is 'not quite' because the natural order for Weinreb is not
something of which we - human beings - are properly a part. Our position in the
natural world is an ambiguous one, for Weinreb, because we fall between being
causally determined by nature and being free to determine ourselves. Hence
George's arguments may appear stronger than they are as a result of this
ambiguity. George's rejoinder does not, of course, detract from the remainder of
Weinreb's essay. It consists of an intriguing argument purporting to establish a
fundamental link between rights and moral responsibility, on the one hand, and
between these two concepts and a natural moral picture of our universe, on the
other.

1H1 Legitimacy, Law and Morality

The second concern of the natural law tradition is the attempt to relate accounts of
the nature and basis of morality to the question, 'when is power or authority
exercised legitimately in a community?' There are four essays in the collection that
address themselves more or less directly to this concern. The essay by Waldron
discusses moral realism. That doctrine also features as the starting point of
Moore's essay. Assessing the plausibility of that doctrine takes both authors into
territory occupied by the first and third concerns (how shall we live? How can we
know?) of the natural law tradition, their arguments about those concerns being
brought to bear on the second. The question Waldron and Moore set themselves to
answer is: 'what would be the effect, if any, of the truth of moral realism upon our
understanding of law, both generally, when we involve ourselves in general
jurisprudence, and particularly, when we seek to understand and account for local
legal practices?' The essay by John Finnis also brings his responses to the first and
third concerns to bear on the second. Of course, his treatment of those concerns
differs from Waldron's and Moore's treatment in a number of respects. For
example, on the Waldron/Moore definition, Finnis is unlikely to qualify as a moral
realist; Finnis is not, as Moore is, a defender of a strong link between law and
morality (p 198); nor is Finnis, as Waldron appears to be, a proponent of some
version of emotivism in ethics (pp 167-171). Neil MacCormick's essay, the
narrowest of the four, tackles only a sub-plot of the second concern of the natural
law tradition; namely, the question of whether or not there is some 'necessary'

18 In his Natural Law and Justice (Cambridge: Harvard UP, 1987) ch 4.

19 See his 'Recent Criticism of Natural Law Theory' (1988) 55 U Chicago L Rev 1371.

@ The Modem Law Review Limited 1993

The Modern Law Review [Vol. 56

connection between law and morality. (It is often thought that a specific move in
this sub-plot serves to distinguish natural lawyers from their opponents.) Unlike
the other three, MacCormick has little to say about the nature and basis of
morality. I discuss his essay first.
MacCormick demonstrates that if the dispute between natural law and legal
positivism is one about the validity of immoral laws, the positivist affirming and
the natural lawyer denying that immoral laws are conceptually possible, then there
is no longer a worthwhile argument because natural lawyers such as Finnis do not
deny what the positivist affirms. 'For Finnis, the classical doctrine is not that there
is a simple and universal all-or-nothing moral criterion for the validity of every law
in every legal system' (p 108). According to MacCormick, Finnis accepts both
that 'an unjust law is no longer legal but rather a corruption of law' (ibid) and that
this 'is not a thesis about the validity of law in its technical sense,' where validity
has to do with 'the observance of proper procedures by persons having appropriate
competence' (ibid). On this view, validity has no connection with moral obligation
- saying that a legal rule is valid says nothing about whether or not it should be
obeyed. In other words, there is no necessary connection between legal and moral
obligation. From this denial of a connection between law and morality
MacCormick goes on, drawing upon, inter alia, his own and Finnis's work, to
elucidate a number of 'other essential connections between the legal and the moral'
(p 110). The connections are found in (i) 'the essential moral aspiration of law
giving' (ibid); (ii) the relationship between 'practical reason as manifested in legal
practice and practical reason as displayed in the moral life' (p 119); and (iii) '[tihe
essential formal features' (p 121) or inner morality of law. Finally, he discusses an
idea which is also a central concern of Finnis' essay, the notion of
incommensurability of values.
One can have no quarrel with MacCormick's treatment of most of these issues.
There is, however, a noticeable silence in his essay as to what exactly it is to affirm
a necessary connection between law and morality. While it is easy enough to
distinguish types of necessity (logical, causal, conceptual, etc) from varieties of
contingency, it is often left unclear what exactly a claim that law and morality are
necessarily conceptually connected involves. If a necessary conceptual connection
is the only plausible link between law and morality, then it must be clear what
affirming such a link entails. On one version of the nature of that conceptually
necessary connection we are committed to holding that the focal meaning of law
'include[s] two necessary components, moral validity in some sense, and other
functional or structural features which ... distinguish the characteristic legal
relationship from other social relationships.' 2 ° If this argument is compelling, 2'
then the MacCormick/Finnis consensus on legal and moral validity is
unacceptable. The general point here is that the failure to clarify the nature of the
claim that is being made when a conceptually necessary connection between law
and morality is affirmed or denied is not unique to MacCormick but is, I think,
common to much of the natural law and positivist tradition. (Moore's essay shows
that he is one of the few to tackle this issue head-on: pp 198-200). Until such time

20 D. Beyleveld and R. Brownsword, Law as a Moral Judgment (London: Sweet & Maxwell, 1986)
p 113, emphasis mine. See also ch 5. This book provides by far the most thorough treatment of the
natural law/positivist dispute over the separation thesis that I have come across.
21 There is a related argument which holds that legal validity entails a moral obligation to obey the law in
absence of countervailing, stronger moral obligations: N.E. Simmonds, 'The Nature of Propositions
of Law' (1984) 15 Rechistheorie 96, at 102- 105.

© The Modern Law Review Limited 1993

September 1993] Natural Law Now

as steps are taken to address this issue, the entente cordiale which MacCormick
recommends between the two traditions may be built on sand.
Of particular note in MacCormick's essay is his attempt to reconcile the moral
aspiration of law-giving with the circumstances of law-creation. The moral
aspiration of law-giving entails that 'laws, like other institutions, are fully
intelligible only by reference to the ends or values they ought to realise, and thus
by reference to the intentions that those who participate in making or implementing
them must at least purport to have' (p 113). Among the intentions law-creators and
adjudicators must purport have, MacCormick includes this requirement: they must
acknowledge the 'moral quality of the relevant ends and values, namely justice and
the public good' (ibid). The obvious problem with this, as MacCormick is only too
well aware, is that those who participate in making and implementing laws in
contemporary societies may lack this good intention. Perish the thought that our
legislators act for the wrong reasons/ Howeve.', if we allow this possibility, it
seems that the moral aspiration of law-giving is still-born. In the apparently
hopeless sea of trade-offs, log-rolling and self-serving that constitutes law-
creation, MacCormick nevertheless sees a virtue; namely, compromise. That
virtue is one which he thinks compatible with the moral aspiration of law-giving.
Compromise, however, is only one word, and on reflection perhaps not a very
accurate one, that could be used to describe the legislative process of law-creation.
Although it seems like an idea which a rational political process ought to track, it is
difficult to say that our political process does so. The example which MacCormick
uses in other parts of his essay - the community charge - bears witness to that.
Hence, while the moral aspiration of law-giving is a value we must take seriously,
we ought to be more circumspect than MacCormick in assessing how far it is
instantiated in our and other societies. Moreover, there is perhaps a move in
MacCormick's argument about this ideal that he might be well advised to reject. It
is the dubious appeal to actual or hypothetical legislators' intentions. If any idea
creates more problems than it solves, it is this one. As lawyers and jurisprudents
we ought to learn to live without it.
After sketching his treatment of the first concern of the natural law tradition in
Natural Law and Natural Rights,22 Finnis' essay outlines the consequences for
theories and the practice of adjudication of the truth of value incommensurability.
That idea is one which MacCormick also accepts (pp 125- 129). Since Finnis and
MacCormick accept incommensurability, they must regard the virtue of tolerance
as a necessity. On the most plausible account of value incommensurability, it exsits
when transitivity does not hold of two or more values.23 When the relationship
between two or more values is transitive we can make judgments such as these: if
value X is more valuable than value Y, and Y is more valuable than Z, then X is
more valuable than Z. If the values in question are incommensurable, then there is
no warrant for making that kind of claim. Hence, we cannot rationally choose
between incommensurable values: '[i]ncommensurability speaks not of what does
escape reason but of what must elude it.' 24 Therefore, no choice can be justified as
rationally better than another. As Finnis puts it: 'if options were fully
commensurable, alternatives could be identified as unqualifiedly superior and

22 Natural Law and Natural Rights (Oxford: Clarendon, 1980); also The Fundamentals of Ethics
(Oxford: Clarendon, 1983).
23 J. Raz, The Morality of Freedom (Oxford: Clarendon, 1986) p 325. I have examined a number of
incommensurability arguments in 'Rights, Values and Controversy' (1992) 5 CanadianJ Law and
Jurisprudence 195, at 206-212.
24 Raz, above n 19, p 334.

D The Modem Law Review Limited 1993 757

The Modern Low Review [Vol. 56

inferior, and the unqualifiedly inferior would lose its rational appeal' (p 141). In
the face of the impossibility of rational justification of some of our choices, the
only humane response is tolerance. Thus, necessity is the basis of this virtue.
For Finnis, the most important theoretical consequence of the truth of value
incommensurability is that Dworkin's account of adjudication, particularly his
claim that in most hard cases there is a right answer, is untenable. This is so if the
values tracked by judges when they formulate and justify propositions of law in
hard cases are incommensurable. There cannot be a right way of resolving a choice
between incommensurable values. This does seem to ring true of our experience of
some judicial decisions. MacCormick expresses it well: 'Uj]udges
characteristically refer to criteria such as "justice," "common sense," "public
policy," and "convenience" or "expediency" in weighing the case for or against
given rulings. It should not be assumed without proof that these really all boil
down to the same thing.' 25 If they cannot boil down to the same thing because they
are incommensurable, then Finnis is right to say that 'the search for one right
answer is practically incoherent and senseless' (p 144).
However, a serious difficulty with incommensurability becomes obvious by
noting the burden MacCormick places upon those who would deny it:
commensurability must not be assumed without proof. But what warrant is there
for allocating the burden of proof in this way and, furthermore, what would such
proof look like? The argument from moral experience does a great deal of work
here. The claim is that incommensurability is familiar to us: '[olne meets
incommensurability in humble contexts, such as having to choose between going to
a lecture, reading a good book, going to the cinema, and talking to friends. One
meets it in relation to grand social choices, such as whether to renounce a nuclear
deterrent' (p 146). It is a dubious strategy to use moral experience to justify
placing the argumentative burden upon proponents of commensurability since,
they too can use the same strategy. Of Finnis' familiar examples, they ask: does
reason really run out when we make everyday choices such as these? Is not proof
required? Moreover, proponents of commensurability can point to areas of moral
experience where commensurability is assumed.26 If moral experience is not
univocal on this issue, then appeals to it must be ruled out. If we do that, however,
there is no basis on which to allocate the argumentative burden. All that could be
done would be to try to produce examples on each side of the argument without
making the mistake of assuming that production of examples refutes the argument
of one's opponent. This argumentative impasse is the result of a belief - that the
incommensurability arguments pro and con ought to 'fit' moral experience -
which might be questioned. Until we know how to proceed in light of different
accounts of moral experience, Finnis' invocation of the incommensurability
argument to refute Dworkin must be treated with caution.
Waldron and Moore disagree over the impact the truth of moral realism has or
would have upon theories and the practice of adjudication. Waldron holds that
neither realism nor anti-realism differ in their treatment of adjudication. Both
avoid arbitrariness in the three senses which Waldron usefully distinguishes
(pp 161- 162 and 178- 182). He points out that talk about the arbitrariness of
legal reasoning equivocates among three rather different possibilities. When we

25 N. MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon, 1978) p 105 (emphasis
mine).
26 See, for example, J. Griffin, 'Are There Incommensurable Values?' (1977) 6 Philosophyand Public
Affairs 47 (now reprinted as ch 5 of his Well-Being (Oxford: Clarendon, 1986)).

@ The Modem Law Review Limited 1993

September 1993] Natural Law Now

say that a judicial decision was arbitrary we may mean any one or all of the
following things: it was unpredictable, it was 'unreasoned, as when a decision is
made on the basis of whim or reflex prejudice rather than on the basis of argument'
(p 162), or that it lacked legitimacy because 'it is for the people or the legislators
they have elected to make that sort of decision' (ibid). Whether realist or anti-
realist about morality, one's account of adjudication must accommodate the fact of
moral controversy. Hence, that there is a fact of the moral matter, in absence of
any widely accepted and truth-trackingmethod for determining it, will make no
difference to the degree of controversy caused by, or perceived arbitrariness of,
judicial decisions. Moral realism, says Waldron, has no practical advantage in the
face of moral controversy.
Moore thinks it does. '[Mioral realism can make sense of some of our
adjudicatory practices - and thereby give us reason to continue them or modify
them, as the case may be - that moral conventionalism and moral scepticism
cannot' (p 229). The example he draws upon is the American constitutional law of
judicial review, but it is not a compelling rejoinder to Waldron's argument from
controversy. Even if it is accepted that in such judicial review cases judges must
have recourse to moral theories of the constitution, it does not follow that a realist
moral theory of the constitution will stop either controversy about what the best
moral theory of the constitution looks like or controversy about whether or not
cases are rightly decided. This is because, says Waldron, the realist has no means
of showing that his theory of the constitution is best. It seems to me that Moore
provides no answer to this. What he does is to shift the terms of the debate
somewhat. From holding that moral realism can make better sense of our
adjudicatory practices than anti-realism, he moves to this claim: moral realism
makes a difference to our theories and practice of adjudication because the moral
realist is able 'to say that there is something .. about which the judge could be
right' (p 230). This, of course, does not make 'better sense' of adjudicatory
practice because it accommodates some feature of practice that anti-realism
cannot. Both accounts accept that judges must in some circumstances make moral
judgments. They differ as to the basis of those judgments, but that difference does
not serve to distinguish realist and anti-realist accounts on the grounds of their fit
with practice. Both realist and anti-realist accounts fit the practice of adjudication
reasonably well; both, in other words, fit our experience and both seek to base
their arguments upon it. Thus, Moore says that the moral "'realists" metaphysical
contention is only that the realists' theses make better sense of the experience most
of us at various times experience' (p 228). Waldron supposedly has exactly the
same foundation for his anti-realist arguments, holding that '[w]e know there is
moral disagreement in society' (p 176, emphasis mine). The problem here is
exactly the same as that found in Finnis' and MacCormick's treatment of value
incommensurability. If experience is rarely univocal, then it is a shaky foundation
on which to base arguments such as these. For that reason, the most we can say of
the dispute between Waldron and Moore is 'not proven' (which, of course, is the
Scots law verdict occupying the via media between innocence and guilt or, in this
case, the path between success and failure).
The remainder of Moore's essay sketches an account of what it might mean to
affirm a necessary connection between law and morality. In his treatment of that
issue, Moore takes us through an account of the nature of description, Kripkean
metaphysics and an account of functional kinds. The argument is a challenging one
and deserves an airing, for those in the United Kingdom at least, in book form
© The Modem Law Review Limited 1993
 he Modern Law Review [Vol. 56

(instalments of the project are published in a large number of American law

journals to which many British jurisprudents will have no direct access). The
remaining two essays in the collection are a debate between Ernest Weinrib and
Joseph Raz. The debate seems tangential to the concerns of the natural law
tradition. Certainly, it does not impact head-on with the three concerns sketched
above.

IV Taking Stock
Are the essays in this volume a success? As is clear, the majority of them address
in varying degree the three concerns of the natural law tradition without tackling
the difficulties in establishing that those concerns are indeed ours and were indeed
concerns of the exemplars of the tradition. That shortcoming could be overlooked
were the essays to shed more and better light on the nature of those concerns. This
they undoubtedly do: all the essays attempt to take the argument a few further steps
onwards by addressing either fashionable bodies of thought (virtue theory or
philosophical pragmatism) or developing new arguments or reformulating old
ones. For that they deserve commendation. Moreover, this does not conflict with
the many gripes and criticisms I have raised of some of the arguments in some of
the essays. It could only do so were one to make a mistaken assumption; namely,
that good books are those about which nothing much can be said. Were a book or
collection of essays to leave one nothing to say, it could not, I think, have
stimulated one's thoughts and driven one to argument. That is a very serious
failing. It is not one, as is evident, from which this collection suffers.

Casting Light on Dracula: Studies in Law and Culture

Maria Aristodemou *
Jane M. Gaines, Contested Culture: The Image, the Voice, and the Law,
London: British Film Institute, 1992, 340 pp, pb £14.95.

Declining belief in the viability of autonomous disciplines is perhaps one of the

most welcome features of contemporary scepticism towards grand meta-
narratives. No discipline can maintain today to have a privileged claim to, or
method for, discovering 'The Truth,' not least because, according to some
theorists, the latter is nothing more than an illusion masking underlying power
struggles over the right to define our world. This lesson has been learned by many
legal writers who have, in recent years, abandoned the view that law can be
understood in isolation from the context in which it operates and are making
increasing use of insights from, amongst other fields, philosophy, sociology,
economics, literary theory and psychology. The breakdown in disciplinary
boundaries has also been accompanied, in varying and conflicting degrees, by an
abandonment of the search for a single theory, or a single method, with which to
interpret one's field of inquiry; the emphasis is instead on 'contextuality,'
'perspectivism' and 'situationality.' Whilst few doubt the benefits to be derived
from such inquiries, many of us may find the idea of engaging in unfamiliar
*Faculty of Law, University of Bristol.

© The Modem Law Review Limited 1993