NATURAL LAW AND LEGAL POSITIVISM

JURISPRUDENCE

SUBMITTED BY SUBMITTED TO
Name-Amulya Anand Dr. Ravindra Kumar Pathak
Semester- V B Assistant Professor
Roll no- 917

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI

NATURAL LAW AND LEGAL POSITIVISM

John Finnis has been for over twenty years one of the most prominent and important
advocates for, and defenders of, natural law theory1.' Natural law theory is a broad tradition;
within that broad tradition, Finnis occupies a somewhat controversial and arguably outsider's
1
See JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980).
position2. Most law students come across natural law theory, not in its usual form as a
centuries-old way of thinking about morality, theology, and politics, but rather in its more
modest and modem guise as a theory competing with legal positivism for the proper
description and analysis of law3. While this entry onto natural law theory may only serve to
invite certain misunderstandings of natural law's larger project, the continuing prominence of
this perspective in law schools and law reviews-seeing natural law mostly as an opponent of
legal positivism-requires that we not ignore this "debate." Certainly Finnis has not ignored
the "debate"; to the contrary, his work has offered many provocative ways of rethinking and
recasting the lines of battle. This Article considers the points of agreement and disagreement
between natural law theory and legal positivism, with particular emphasis on Finnis's views
of the "debate" and his contributions to it.

Part I considers some threshold methodological difficulties with the inquiry. Part II considers
a conventional understanding of the boundary lines between natural law theory and legal
positivism, noting how many recent writers, Finnis included, have concluded that the two
schools of thought may be, in these matters at least, compatible. Part III follows the lead of
Finnis's more recent work and looks for significant differences of perspective elsewhere, in a
potential debate over the basic value or viability of the legal positivist enterprise.

DANGERS OF DISCUSSING SCHOOLS OF THOUGHT

There is one preliminary concern. Joseph Raz has described the dangers in talking about the
views of a particular school of thought: [0] ne of the unattractive tendencies of contemporary
legal and political philosophy [is where a commentator] does not discuss anyone's views, but
2
See, e.g., RUSSELL HITTINGER, A CRITIQUE OF THE NEW NATURAL LAW THEORY (1987), Russell
Hittinger, Varieties of Minimalist Natural Law Theory, 34 Am. J. JURIS. 133 (1989) (same).
3
For an overview of natural law theory and the place of natural law legal theories within that larger context, see
Brian Bix, Natural Law Theory: The Modem Tradition, in HANDBOOK OF JURISPRUDENCE AND LEGAL
PHILOSOPHY (Jules L. Coleman & Scott Shapiro eds., forthcoming 2000), available in Social Science
Research Network Electronic Library (last modified Dec. 12, 1999)
a family of views. This allows one to construct one's target by selecting features from a
variety of authors so that the combined picture is in fact no one's view, and all those cited as
adhering to it would disagree with it 4. The dangers must double when one is comparing two
different schools of thought, here natural law theory and legal positivism. Yet most
academics persist in talking about "schools of thought" or "movements," in part because we
are invited to do so by the theorists themselves, many of whom broadly proclaim their
affiliations (as well as the group, or group of claims, at which their criticisms are targeted),
and in part because life just becomes too complicated if one cannot discuss individual views
or events as the instance of a larger group. The trick is to try to make sure that the group one
is describing is not just the "straw man" Raz warns us about-that there is at least one major
theorist willing to affirm all the views attributed to the category described. This Article will
refer to "legal positivism" and "natural law theory" as schools of thought, but will try to do so
in a way which respects the diversity within those titles and does not create in the name of
those groups a fictional, weak hybrid view, which no existing or past legal theorist would
actually advocate.

THE CONVENTIONAL VIEW OF THE BOUNDARY LINE

To summarize, briefly and a bit crudely, natural law theory considers the connections
between the universe, human nature, and morality, usually deriving the last from some
combination of the first two5. The majority position within the natural law tradition appears to
4
Joseph Raz, Postema on Law's Autonomy and Public Practical Reasons: A Critical Comment, 4 LEGAL
THEORY 1, 1 (1998).
5
See, e.g., YVEs R. SIMON, THE TRADITION OF NATURAL LAW: A PHILOSOPHER'S REFLECTIONS
41-66 (Vukan Kuic ed., 1965); LLOYD L. WENREB, NATURAL LAW AND JUSTICE 1-2 (1987)
(discussing the connections between nature, law, and morality in classical natural law theory); Bix, supra note 3,
be that moral truths are to be derived from truths about human nature. A minority position in
the tradition, represented by, among others, Finnis, Germain Grisez, and Robert George, is
that moral truths are to be discovered or derived in other ways (though these truths are
connected with truths about human nature, they are not derived from such truths) 6. The
difference can be crucial for those attempting to avoid an allegedly improper derivation of an
"ought" from an "is7." Natural law theory discussions of human positive law tend to focus on
moral obligations: what laws should a (good) legislator pass, and when does a (good) citizen
have a moral obligation to obey the law8.

Legal positivism is the belief that it is both tenable and valuable to offer a purely conceptual
and/or purely descriptive theory of law, in which the analysis of law is kept strictly separate
from its evaluation9. Modem legal positivism developed in reaction to certain (less
sophisticated) versions of natural law theory. John Austin was reacting to some clumsy
natural law references in the work of Sir William Blackstone when he wrote what has
become perhaps the most frequently cited summary of legal positivistic "dogma": The
existence of law is one thing; its merit or demerit is another. Whether it be or be not is one
enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A
law, which actually exists, is a law, though we happen to dislike it, or though it vary from the
text, by which we regulate our approbation and disapprobation10.

There are two “natural law” theories about two different things: i) a natural law theory of
morality, or what’s right and wrong, and ii) a natural law theory of positive law, or what’s
legal and illegal. The two theories are independent of each other: it’s perfectly consistent to
accept one but reject the other. Legal positivism claims that ii) is false. Legal positivism and

at 1-18.
6
See ROBERT P. GEORGE, IN DEFENSE OF NATURAL LAW 83-87 (1999) (summarizing the dispute).
7
See FINNIS, supra note 1, at 33-36 (responding to the "is/ought" challenge).
8
See, e.g., SAINT THOMAS AQUINAS, THE TREATISE ON LAW (RJ. Henle ed. & trans., 1993) (offering a
translation of sections of the Summa Theologiae that discuss law); FNNIS, supra note 1, at 260-96.
9
See generally BRIAN Bix, JURISPRUDENCE: THEORY AND CONTEXT 31-49 (2d ed. 1999) (discussing
Hart and legal positivism); THE AUTONOMY OF LAW: ESSAYS ON LEGAL POSrFIIsM (Robert P. George
ed., 1996) [hereinafter THE AUTONOMY OF LAw]; Jules L. Coleman & Brian Leiter, Legal Positivism, in A
COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 241 (Dennis Patterson ed., 1996).
10
JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 157 (Wilfrid E. Rumble ed.,
Cambridge Univ. Press 1995) (1832). The Blackstone quotation to which Austin was responding appears in 1
WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 41 (University of Chicago
Press 1979) (1765). For a sympathetic discussion of Blackstone's natural law views, seeJ.M. Finnis,
Blackstone's Theoretical Intentions, 12 NAT. L.F. 163 (1967).
the natural law theory of positive law are rival views about what law is and what its relation
to justice/morality is.

Natural Law Theory of Morality i) Even things which are not man-made (e.g. plants, rocks,
planets, and people) have purposes or functions, and the “good” for anything is the realization
of its purpose or function.

ii) The good for us human beings is happiness, the living of a flourishing life. Happiness or
flourishing consists in the fulfillment of our distinctive nature, what we “by nature” do best.
That involves the development and exercise of our capacities for rationality, abstract
knowledge, deliberative choice, imagination, friendship, social cooperation based on a sense
of justice, etc. The moral virtues (e.g. courage, justice, benevolence, temperance) are
character traits that help us fulfill our true nature. The life of the heroin addict or of the carnal
hedonist is not a good one, because it is inconsistent with our natural function.

iii) Natural law is the set of truths about morality and justice; they are rules that we must
follow in order to lead a good or flourishing life. We can know what these principles are by
means of unaided human reason. [The natural law theory of morality rejects ethical
subjectivism (“right and wrong are all a matter of opinion”) and affirms ethical objectivism
(“some moral opinions are more valid, reasonable, or likely to be true than others”)]. Immoral
acts violate natural law. Hence, immoral behavior is “unnatural” (in the sense of “contrary to
our function,” not “nowhere to be found in the natural world”), whereas virtuous behavior is
“natural.” For example, lying is unnatural, Aquinas holds, because the function of speech is
to communicate to others what is in our minds. When we use words to mislead others, we are
using them contrary to their proper function.

Natural Law Theory of Law

Legal systems have a function—to secure justice. Grossly unjust laws (e.g. “White people
may own Black people as slaves,” “women may not own property or vote”) are not really
laws at all, but a perversion of law or mere violence. As St. Augustine put it, lex injustia non
est lex. Aquinas’s way of stating this point: positive law has as its purpose the common good
of the community. Any positive law which conflicts/is inconsistent with either natural law or
divine law is not really law at all. Hence, not only is there no moral obligation to obey it, but
there is no legal obligation to obey it, either. Augustine, Aquinas, and Martin Luther King are
supporters of this view.

Lon Fuller argued there is some necessary overlap between legality and justice, because it’s
impossible to have a legal system without fidelity to the rule of law and formal justice.
(Fuller would probably have cited Iraq under Saddam Hussein as a good example of a society
that violated the rule of law so much that it really had no genuine legal system at all). But
Fuller does not go as far as Augustine or Aquinas, because he admits that a society can have a
genuine legal system that satisfies the demands of formal justice (“like cases must be treated
alike”) yet still have particular laws that are unjust. In such a society, judges are independent
of the other branches of government and decide cases on their merits, the society honors the
principles “no punishment without a crime” and “no crime without a pre-existing, public
law,” the accused receives a fair trial with due process of law, etc. But still, some of the laws
that are consistently and fairly enforced are unjust (e.g. “women may not own property or
vote”).

Ronald Dworkin, whom will talk about more later, defends a view of legal interpretation (by
judges) that he claims is in the tradition of the natural law theory of positive law. Dworkin
argues it is proper for Supreme Court justices to interpret the Constitution in light of the
correct principles of justice that our country tries to honor.

Legal Positivism—
Whether a certain rule is a law, creating legal obligations to comply with it, all depends on its
source. Valid laws are simply rules that come from certain people (kings, city councils, etc.),
in accordance with certain procedures, that the society enforces. A rule can be a genuine,
valid law even though it is grossly unjust. According to H.L.A. Hart, a contemporary legal
positivist, the essence of legal positivism is the “separation thesis.”

Separation thesis: having a legal right to do x doesn’t entail having a moral right to do it, and
vice versa; having a legal obligation to do something doesn’t entail having a moral right to do
it, and vice versa; having a legal justification to do something doesn’t entail having a moral
justification, and vice versa; etc.

In order to know what your legal rights are, you need to look at what laws your society has.
In order to know what your moral rights are, you need to figure out what is the true morality.
You might have legal rights that the true morality says you shouldn’t have (e.g. the right to
own slaves), and your society might deny you legal rights that the true morality says you
should have (e.g. the right to be free, to own one’s own body and labor power). -- Some of
the most influential defenders of legal positivism are the 19th century philosophers John
Austin and Jeremy Bentham, and the 20th century legal philosopher H.L.A. Hart.

Some terminology from Aquinas and Austin

Aquinas distinguishes four types of law—human, divine, eternal, and natural—as follows:
Human law—“an ordinance of reason for the common good promulgated by him who has the
care of the community.” Eternal law —God’s plan for all of creation. Natural law—The part
of eternal law that applies to human beings; it is God’s plan for us. Natural law can be
discerned by unaided human reason, and it consists in the correct moral principles.

E.g. “it is never permissible intentionally to kill an innocent human being,” and “one must
never intend what is evil, even as a means to achieving a good or avoiding a bad result” are
natural laws, in Aquinas’s view. Divine law—the part of eternal law that God reveals to us
human beings via Scripture. If something is against natural law, then it’s against divine law
too. But some things, primarily of a religious nature, are contrary to divine law but not
natural law. For example, natural reason and natural law tell us that the God of traditional
theism exists and should be venerated. But it is only through divine revelation that we can
know that baptism, membership in the Christian church, etc. are necessary for our salvation.
Aquinas insists that human laws are genuine laws only if they do not contradict either natural
or divine law.
Austin’s definition of law: a “rule laid down for the guidance of an intelligent being by an
intelligent being having power over him.” There are two kinds of law: positive law (rules
commanded by political superiors to their inferiors) and divine law (rules that God
commands all human beings to follow). Law are commands, which Austin defines as an
expression of a wish by someone who has the willingness and ability to enforce compliance.
(“If you cannot or will not harm me in case I comply not with your wish, the expression of
your wish is not a command.”)

Unlike Aquinas, Austin does not distinguish divine and natural law. Austin assumes that
God’s commands to us are the true morality. Austin distinguishes divine law/the true morality
from “positive morality,” or the beliefs about what’s right/wrong, just/unjust that are held by
the majority of people in some society. The positive morality of our society is correct insofar
as it coincides with divine law and incorrect insofar as it deviates from it. It’s worth noting
that Austin had an unorthodox view of the content of divine law. Austin believed that God
commands us to be utility maximizers, making utilitarianism the true morality.

Positive laws are commanded by “political superiors.” Austin calls these superiors the
“sovereign,” and he defines “sovereign” as the person or persons who are not in the habit of
obeying anyone else, and whom everyone else is in the habit of obeying. Positive laws are
general commands by people who themselves are not bound by them, and who can enforce
obedience from everyone else. The idea that the “sovereign” is above the law is one that
Austin shares with the 17th century political philosopher Thomas Hobbes. Austin, then,
defends two ideas: i) the command theory of law, and ii) the separation thesis. (See the 5 or 6
paragraphs in the textbook that start with the sentence “The existence of law is one thing; its
merit or demerit is another.”) What is the logical relationship between i) and ii)? ii) follows
from i); that is, if i) is true, then ii) must be also. But i) does not follow from ii). It’s perfectly
consistent to think that the separation thesis is true, but the command theory is false. That’s
precisely what H.L.A. Hart believes.