Ius Gentium: Natural Law or Positive Law?

by dgboland © 2000

Aristotle divides law into natural law and positive law. Natural law is determined by our
understanding of what we are, or our human nature. Positive law is determined simply by the
will of the lawmaker. Under natural law something is forbidden because it is wrong, being
unsuitable to our human nature, properly understood. Under positive law something is wrong
because it is forbidden. The two kinds of law are clearly quite opposite. Aristotle might say they
are contraries.

Natural law, however, is more fundamental. Positive law cannot change or abrogate natural law.
Positive law is concerned with human activities or behaviour that natural law has not ruled on.
Positive law, as St. Thomas says, can only add to natural law; it cannot subtract from it. Thus,
another way of looking at the division of law into natural law and positive law is to say that
postive law is law that is additional to natural law.

In the light of this division of law, how are we to characterise that order of laws that is called the
ius gentium? According to St. Thomas, ius gentium is something added to natural law. This
would seem to place it squarely within positive law. Yet, St. Thomas makes it quite clear that
something is forbidden under ius gentium because it is contrary to reason, i.e. because it is
wrong, not wrong simply because it is forbidden. In that regard, then, ius gentium resembles
natural law rather than positive law.

The resolution of the problem here lies, as is often the case, in a distinction to be made.
St. Thomas retains the strict sense of natural law of what we immediately understand about
ourselves in the light of our human nature, but makes a distinction within positive law. He points
out that there are two ways in which something may be added to what we intuitively, as it were,
know should be done. Thus he says: " – something may be derived from the natural law in two
ways: first, as a conclusion from premises, secondly, by way of determination of certain
generalities. The first way is like to that whereby, in sciences, demonstrated conclusions are
drawn from the principles. The second mode is like to that whereby, in the arts, general forms are
particularised as to details; thus the craftsman needs to determine the general shape of a house to
some particular shape." [I-II, 95, a. 2. c]

Positive law, then, taken in the broad sense of what is posited by reason and will over and above
what we know naturally, as it were, includes both ius gentium and positive law in the strict sense
- what is determined by the "art" (political prudence) or even mere will of the civil government.
It is only in this narrower area of positive law that something can be wrong simply because it is
forbidden. Ius gentium is distinct from natural law, taken in the strict sense of the absolutely first
or self-evident principles of morality. But when natural law is taken in a broader sense of what is
intrinsically suitable to human nature fully considered (what is within ethico-political science),
ius gentium rather belongs to natural law than to positive law. For "the law of nations is indeed in
some way natural to man, in so far as he is a reasonable being, because it is derived from the
natural law by way of a conclusion that is not very remote from its premises." [I-II, 95, a. 4. ad 1]
Both natural law and ius gentium, therefore, have the force of law beyond national and political
boundaries. There are many important social institutions, indeed, that St. Thomas identifies as
pertaining to ius gentium. Perhaps the two most important are marriage and property. Hence, the
folly of those who would attempt to deny the special bond of the marriage contract, because it is
something natural to human nature. "What God has joined together, let no man put asunder" is
the scriptural admonition regarding the natural obligation taken on in the marriage-covenant. The
civil law (positive law) simply has no authority to dissolve it. Similarly, those who attack the
institution of property in land and goods mistake badly the basic requirements of our rational
nature. It seems also that St. Thomas included in ius gentium the institution of free trade,
provided it is fair trade. For he places "just sales and purchases" amongst the conclusions to be
derived from natural law.

The ius gentium is clearly an area of law that deserves much closer study. It is unfortunate that it
tends to be overlooked because of an uncritical and simplistic interpretation of the division of
law into natural and positive. It is even more unfortunate that its precepts then tend to be
relegated to the status of the merely conventional.

Those laws that have been duly enacted by a properly instituted and popularly recognized
branch of government.

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

entity vested with authority by the government to prescribe the rules and regulations for a
particular community. In the United States, positive laws come in a variety of forms at both the
state and federal levels, including legislative enactments, judicial orders, executive decrees, and
administrative regulations. In short, a positive law is any express written command of the
government. The belief that the only legitimate sources of law are those written rules and
regulations laid down by the government is known as Positivism.

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

positive law n. statutory man-made law, as compared to "natural law" which is purportedly based
on universally accepted moral principles, "God's law," and/or derived from nature and reason.
The term "positive law," was first used by Thomas Hobbes in Leviathan (1651)

Natural Law
The term “natural law” is ambiguous. It refers to a type of moral theory, as well as to a type of
legal theory, but the core claims of the two kinds of theory are logically independent. It does not
refer to 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 Dworkin’s 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
3. The Substantive Neo-Naturalism of John Finnis
4. The Procedural Naturalism of Lon L. Fuller
5. Ronald Dworkin’s “Third Theory”
6. 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 I-II, Q.90, A.I). On this common view, since human
beings are by nature rational beings, it is morally appropriate that they should behave in a way
that conforms to their rational nature. Thus, Aquinas derives the moral law from the nature of
human beings (thus, “natural law”).

But there is another kind of natural law theory having to do with the relationship of morality to
law. According to natural law theory of law, there is no clean division between the notion of law
and the notion of morality. Though there are different versions of natural law theory, all
subscribe to the thesis that there are at least some laws that depend for their “authority” not on
some pre-existing human convention, but on the logical relationship in which they stand to moral
standards. Otherwise put, some norms are authoritative in virtue of their moral content, even
when there is no convention that makes moral merit a criterion of legal validity. The idea that the
concepts of law and morality intersect in some way is called the Overlap Thesis.

As an empirical matter, many natural law moral theorists are also natural law legal theorists, but
the two theories, strictly speaking, are logically independent. One can deny natural law theory of
law but hold a natural law theory of morality. John Austin, the most influential of the early legal
positivists, for example, denied the Overlap Thesis but held something that resembles a natural
law ethical theory.

Indeed, Austin explicitly endorsed the view that it is not necessarily true that the legal validity of
a norm depends on whether its content conforms to morality. But while Austin thus denied the
Overlap Thesis, he accepted an objectivist moral theory; indeed, Austin inherited his
utilitarianism almost wholesale from J.S. Mill and Jeremy Bentham. Here it is worth noting that
utilitarians sometimes seem to suggest that they derive their utilitarianism from certain facts
about human nature; as Bentham once wrote, “nature has placed mankind under the governance
of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to
do, as well as to determine what we shall do. On the one hand the standard of right and wrong,
on the other the chain of causes and effects, are fastened to their throne” (Bentham 1948, 1).
Thus, a commitment to natural law theory of morality is consistent with the denial of natural law
theory of law.

Conversely, one could, though this would be unusual, accept a natural law theory of law without
holding a natural law theory of morality. One could, for example, hold that the conceptual point
of law is, in part, to reproduce the demands of morality, but also hold a form of ethical
subjectivism (or relativism). On this peculiar view, the conceptual point of law would be to
enforce those standards that are morally valid in virtue of cultural consensus. For this reason,
natural law theory of law is logically independent of natural law theory of morality. The
remainder of this essay will be exclusively concerned with natural law theories of law.

2. Conceptual Naturalism
a. The Project of Conceptual Jurisprudence

The principal objective of conceptual (or analytic) jurisprudence has traditionally been to provide
an account of what distinguishes law as a system of norms from other systems of norms, such as
ethical norms. As John Austin describes the project, conceptual jurisprudence seeks “the essence
or nature which is common to all laws that are properly so called” (Austin 1995, 11).
Accordingly, the task of conceptual jurisprudence is to provide a set of necessary and sufficient
conditions for the existence of law that distinguishes law from non-law in every possible world.

While this task is usually interpreted as an attempt to analyze the concepts of law and legal
system, there is some confusion as to both the value and character of conceptual analysis in
philosophy of law. As Brian Leiter (1998) points out, philosophy of law is one of the few
philosophical disciplines that takes conceptual analysis as its principal concern; most other areas
in philosophy have taken a naturalistic turn, incorporating the tools and methods of the sciences.
To clarify the role of conceptual analysis in law, Brian Bix (1995) distinguishes a number of
different purposes that can be served by conceptual claims: (1) to track linguistic usage; (2) to
stipulate meanings; (3) to explain what is important or essential about a class of objects; and (4)
to establish an evaluative test for the concept-word. Bix takes conceptual analysis in law to be
primarily concerned with (3) and (4).

In any event, conceptual analysis of law remains an important, if controversial, project in

contemporary legal theory. Conceptual theories of law have traditionally been characterized in
terms of their posture towards the Overlap Thesis. Thus, conceptual theories of law have
traditionally been divided into two main categories: those like natural law legal theory that affirm
there is a conceptual relation between law and morality and those like legal positivism that deny
such a relation.

b. Classical Natural Law Theory

All forms of natural law theory subscribe to the Overlap Thesis, which asserts that there is some
kind of non-conventional relation between law and morality. According to this view, then, the
notion of law cannot be fully articulated without some reference to moral notions. Though 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 ñ 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.

On Finnis’s view, the conceptual point of law is to facilitate the common good by providing
authoritative rules that solve coordination problems that arise in connection with the common
pursuit of these basic goods. Thus, Finnis sums up his theory of law as follows:

[T]he term ‘law’ … refer[s] primarily to rules made, in accordance with regulative legal rules, by
a determinate and effective authority (itself identified and, standardly, constituted as an
institution by legal rules) for a ‘complete’ community, and buttressed by sanctions in accordance
with the rule-guided stipulations of adjudicative institutions, this ensemble of rules and
institutions being directed to reasonably resolving any of the community’s co-ordination
problems (and to ratifying, tolerating, regulating, or overriding co-ordination solutions from any
other institutions or sources of norms) for the common good of that community (Finnis 1980,
276).

Again, it bears emphasizing that Finnis takes care to deny that there is any necessary moral test
for legal validity: “one would simply be misunderstanding my conception of the nature and
purpose of explanatory definitions of theoretical concepts if one supposed that my definition
‘ruled out as non-laws’ laws which failed to meet, or meet fully, one or other of the elements of
the definition” (Finnis 1980, 278).
Nevertheless, Finnis believes that to the extent that a norm fails to satisfy these conditions, it
likewise fails to fully manifest the nature of law and thereby fails to fully obligate the citizen-
subject of the law. Unjust laws may obligate in a technical legal sense, on Finnis’s view, but they
may fail to provide moral reasons for action of the sort that it is the point of legal authority to
provide. Thus, Finnis argues that “a ruler’s use of authority is radically defective if he exploits
his opportunities by making stipulations intended by him not for the common good but for his
own or his friends’ or party’s or faction’s advantage, or out of malice against some person or
group” (Finnis 1980, 352). For the ultimate basis of a ruler’s moral authority, on this view, “is
the fact that he has the opportunity, and thus the responsibility, of furthering the common good
by stipulating solutions to a community’s co- ordination problems” (Finnis 1980, 351).

Finnis’s theory is certainly more plausible as a theory of law than the traditional interpretation of
classical naturalism, but such plausibility comes, for better or worse, at the expense of
naturalism’s identity as a distinct theory of law. Indeed, it appears that Finnis’s natural law
theory is compatible with naturalism’s historical adversary, legal positivism, inasmuch as
Finnis’s view is compatible with a source-based theory of legal validity; laws that are technically
valid in virtue of source but unjust do not, according to Finnis, fully obligate the citizen. Indeed,
Finnis (1996) believes that Aquinas’s classical naturalism fully affirms the notion that human
laws are “posited.”

4. The Procedural Naturalism of Lon L. Fuller

Like Finnis, Lon Fuller (1964) rejects the conceptual naturalist idea that there are necessary
substantive moral constraints on the content of law. But Fuller, unlike Finnis, believes that law is
necessarily subject to a procedural morality. On Fuller’s view, human activity is necessarily
goal-oriented or purposive in the sense that people engage in a particular activity because it helps
them to achieve some end. Insofar as human activity is essentially purposive, according to Fuller,
particular human activities can be understood only in terms that make reference to their purposes
and ends. Thus, since lawmaking is essentially purposive activity, it can be understood only in
terms that explicitly acknowledge its essential values and purposes:

The only formula that might be called a definition of law offered in these writings is by now
thoroughly familiar: law is the enterprise of subjecting human conduct to the governance of
rules. Unlike most modern theories of law, this view treats law as an activity and regards a legal
system as the product of a sustained purposive effort (Fuller 1964, 106).

To the extent that a definition of law can be given, then, it must include the idea that law’s
essential function is to “achiev[e] [social] order through subjecting people’s conduct to the
guidance of general rules by which they may themselves orient their behavior” (Fuller 1965,
657).

Fuller’s functionalist conception of law implies that nothing can count as law unless it is capable
of performing law’s essential function of guiding behavior. And to be capable of performing this
function, a system of rules must satisfy the following principles:

 (P1) the rules must be expressed in general terms;

  (P2) the rules must be publicly promulgated;
 (P3) the rules must be prospective in effect;
 (P4) the rules must be expressed in understandable terms;
 (P5) the rules must be consistent with one another;
 (P6) the rules must not require conduct beyond the powers of the affected parties;
 (P7) the rules must not be changed so frequently that the subject cannot rely on them; and
 (P8) the rules must be administered in a manner consistent with their wording.

On Fuller’s view, no system of rules that fails minimally to satisfy these principles of legality
can achieve law’s essential purpose of achieving social order through the use of rules that guide
behavior. A system of rules that fails to satisfy (P2) or (P4), for example, cannot guide behavior
because people will not be able to determine what the rules require. Accordingly, Fuller
concludes that his eight principles are “internal” to law in the sense that they are built into the
existence conditions for law.

These internal principles constitute a morality, according to Fuller, because law necessarily has
positive moral value in two respects: (1) law conduces to a state of social order and (2) does so
by respecting human autonomy because rules guide behavior. Since no system of rules can
achieve these morally valuable objectives without minimally complying with the principles of
legality, it follows, on Fuller’s view, that they constitute a morality. Since these moral principles
are built into the existence conditions for law, they are internal and hence represent a conceptual
connection between law and morality. Thus, like the classical naturalists and unlike Finnis,
Fuller subscribes to the strongest form of the Overlap Thesis, which makes him a conceptual
naturalist.

Nevertheless, Fuller’s conceptual naturalism is fundamentally different from that of classical

naturalism. First, Fuller rejects the classical naturalist view that there are necessary moral
constraints on the content of law, holding instead that there are necessary moral constraints on
the procedural mechanisms by which law is made and administered: “What I have called the
internal morality of law is … a procedural version of natural law … [in the sense that it is]
concerned, not with the substantive aims of legal rules, but with the ways in which a system of
rules for governing human conduct must be constructed and administered if it is to be efficacious
and at the same time remain what it purports to be” (Fuller 1964, 96- 97).

Second, Fuller identifies the conceptual connection between law and morality at a higher level of
abstraction than the classical naturalists. The classical naturalists view morality as providing
substantive constraints on the content of individual laws; an unjust norm, on this view, is
conceptually disqualified from being legally valid. In contrast, Fuller views morality as
providing a constraint on the existence of a legal system: “A total failure in any one of these
eight directions does not simply result in a bad system of law; it results in something that is not
properly called a legal system at all” (Fuller 1964, 39).

Fuller’s procedural naturalism is vulnerable to a number of objections. H.L.A. Hart, for example,
denies Fuller’s claim that the principles of legality constitute an internal morality; according to
Hart, Fuller confuses the notions of morality and efficacy:
[T]he author’s insistence on classifying these principles of legality as a “morality” is a source of
confusion both for him and his readers…. [T]he crucial objection to the designation of these
principles of good legal craftsmanship as morality, in spite of the qualification “inner,” is that it
perpetrates a confusion between two notions that it is vital to hold apart: the notions of purposive
activity and morality. Poisoning is no doubt a purposive activity, and reflections on its purpose
may show that it has its internal principles. (“Avoid poisons however lethal if they cause the
victim to vomit”….) But to call these principles of the poisoner’s art “the morality of poisoning”
would simply blur the distinction between the notion of efficiency for a purpose and those final
judgments about activities and purposes with which morality in its various forms is concerned
(Hart 1965, 1285-86).

On Hart’s view, all actions, including virtuous acts like lawmaking and impermissible acts like
poisoning, have their own internal standards of efficacy. But insofar as such standards of efficacy
conflict with morality, as they do in the case of poisoning, it follows that they are distinct from
moral standards. Thus, while Hart concedes that something like Fuller’s eight principles are built
into the existence conditions for law, he concludes they do not constitute a conceptual
connection between law and morality.

Unfortunately, Hart overlooks the fact that most of Fuller’s eight principles double as moral
ideals of fairness. For example, public promulgation in understandable terms may be a necessary
condition for efficacy, but it is also a moral ideal; it is morally objectionable for a state to enforce
rules that have not been publicly promulgated in terms reasonably calculated to give notice of
what is required. Similarly, we take it for granted that it is wrong for a state to enact retroactive
rules, inconsistent rules, and rules that require what is impossible. Poisoning may have its
internal standards of efficacy, but such standards are distinguishable from the principles of
legality in that they conflict with moral ideals.

Nevertheless, Fuller’s principles operate internally, not as moral ideals, but merely as principles
of efficacy. As Fuller would likely acknowledge, the existence of a legal system is consistent
with considerable divergence from the principles of legality. Legal standards, for example, are
necessarily promulgated in general terms that inevitably give rise to problems of vagueness. And
officials all too often fail to administer the laws in a fair and even-handed manner even in the
best of legal systems. These divergences may always be prima facie objectionable, but they are
inconsistent with a legal system only when they render a legal system incapable of performing its
essential function of guiding behavior. Insofar as these principles are built into the existence
conditions for law, it is because they operate as efficacy conditions and not because they function
as moral ideals.

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, 185-186).

Dworkin rejects positivism’s Social Fact Thesis on the ground that there are some legal standards
the authority of which cannot be explained in terms of social facts. In deciding hard cases, for
example, judges often invoke moral principles that Dworkin believes do not derive their legal
authority from the social criteria of legality contained in a rule of recognition (Dworkin 1977, p.
40).

In Riggs v. Palmer, for example, the court considered the question of whether a murderer could
take under the will of his victim. At the time the case was decided, neither the statutes nor the
case law governing wills expressly prohibited a murderer from taking under his victim’s will.
Despite this, the court declined to award the defendant his gift under the will on the ground that
it would be wrong to allow him to profit from such a grievous wrong. On Dworkin’s view, the
court decided the case by citing “the principle that no man may profit from his own wrong as a
background standard against which to read the statute of wills and in this way justified a new
interpretation of that statute” (Dworkin 1977, 29).

On Dworkin’s view, the Riggs court was not just reaching beyond the law to extralegal standards
when it considered this principle. For the Riggs judges would “rightfully” have been criticized
had they failed to consider this principle; if it were merely an extralegal standard, there would be
no rightful grounds to criticize a failure to consider it (Dworkin 1977, 35). Accordingly,
Dworkin concludes that the best explanation for the propriety of such criticism is that principles
are part of the law.

Further, Dworkin maintains that the legal authority of standards like the Riggs principle cannot
derive from promulgation in accordance with purely formal requirements: “[e]ven though
principles draw support from the official acts of legal institutions, they do not have a simple or
direct enough connection with these acts to frame that connection in terms of criteria specified
by some ultimate master rule of recognition” (Dworkin 1977, 41).

On Dworkin’s view, the legal authority of the Riggs principle can be explained wholly in terms
of its content. The Riggs principle was binding, in part, because it is a requirement of
fundamental fairness that figures into the best moral justification for a society’s legal practices
considered as a whole. A moral principle is legally authoritative, according to Dworkin, insofar
as it maximally conduces to the best moral justification for a society’s legal practices considered
as a whole.
Dworkin believes that a legal principle maximally contributes to such a justification if and only
if it satisfies two conditions: (1) the principle coheres with existing legal materials; and (2) the
principle is the most morally attractive standard that satisfies (1). The correct legal principle is
the one that makes the law the moral best it can be. Accordingly, on Dworkin’s view,
adjudication is and should be interpretive:

[J]udges should decide hard cases by interpreting the political structure of their community in the
following, perhaps special way: by trying to find the best justification they can find, in principles
of political morality, for the structure as a whole, from the most profound constitutional rules and
arrangements to the details of, for example, the private law of tort or contract (Dworkin 1982,
165).

There are, thus, two elements of a successful interpretation. First, since an interpretation is
successful insofar as it justifies the particular practices of a particular society, the interpretation
must fit with those practices in the sense that it coheres with existing legal materials defining the
practices. Second, since an interpretation provides a moral justification for those practices, it
must present them in the best possible moral light.

For this reason, Dworkin argues that a judge should strive to interpret a case in roughly the
following way:

A thoughtful judge might establish for himself, for example, a rough “threshold” of fit which any
interpretation of data must meet in order to be “acceptable” on the dimension of fit, and then
suppose that if more than one interpretation of some part of the law meets this threshold, the
choice among these should be made, not through further and more precise comparisons between
the two along that dimension, but by choosing the interpretation which is “substantively” better,
that is, which better promotes the political ideals he thinks correct (Dworkin 1982, 171).

As Dworkin conceives it, then, the judge must approach judicial decision-making as something
that resembles an exercise in moral philosophy. Thus, for example, the judge must decide cases
on the basis of those moral principles that “figure[] in the soundest theory of law that can be
provided as a justification for the explicit substantive and institutional rules of the jurisdiction in
question” (Dworkin 1977, 66).

And this is a process, according to Dworkin, that “must carry the lawyer very deep into political
and moral theory.” Indeed, in later writings, Dworkin goes so far as to claim, somewhat
implausibly, that “any judge’s opinion is itself a piece of legal philosophy, even when the
philosophy is hidden and the visible argument is dominated by citation and lists of facts”
(Dworkin 1986, 90).

Dworkin believes his theory of judicial obligation is a consequence of what he calls the Rights
Thesis, according to which judicial decisions always enforce pre-existing rights: “even when no
settled rule disposes of the case, one party may nevertheless have a right to win. It remains the
judge’s duty, even in hard cases, to discover what the rights of the parties are, not to invent new
rights retrospectively” (Dworkin 1977, 81).
In “Hard Cases,” Dworkin distinguishes between two kinds of legal argument. Arguments of
policy “justify a political decision by showing that the decision advances or protects some
collective goal of the community as a whole” (Dworkin 1977, 82). In contrast, arguments of
principle “justify a political decision by showing that the decision respects or secures some
individual or group right” (Dworkin 1977, 82).

On Dworkin’s view, while the legislature may legitimately enact laws that are justified by
arguments of policy, courts may not pursue such arguments in deciding cases. For a
consequentialist argument of policy can never provide an adequate justification for deciding in
favor of one party’s claim of right and against another party’s claim of right. An appeal to a pre-
existing right, according to Dworkin, can ultimately be justified only by an argument of
principle. Thus, insofar as judicial decisions necessarily adjudicate claims of right, they must
ultimately be based on the moral principles that figure into the best justification of the legal
practices considered as a whole.

Notice that Dworkin’s views on legal principles and judicial obligation are inconsistent with all
three of legal positivism’s core commitments. Each contradicts the Conventionality Thesis
insofar as judges are bound to interpret posited law in light of unposited moral principles. Each
contradicts the Social Fact Thesis because these moral principles count as part of a community’s
law regardless of whether they have been formally promulgated. Most importantly, Dworkin’s
view contradicts the Separability Thesis in that it seems to imply that some norms are necessarily
valid in virtue of their moral content. It is his denial of the Separability Thesis that places
Dworkin in the naturalist camp.