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Natural Law

The term natural law is ambiguous. It refers to a type of moral theory, as well as to a type of
legal theory, but the core claims of the two kinds of theory are logically independent. It does not
refer to the laws of nature, the laws that science aims to describe. According to natural law
moral theory, the moral standards that govern human behavior are, in some sense, objectively
derived from the nature of human beings and the nature of the world. While being logically
independent of natural law legal theory, the two theories intersect. However, the majority of the
article will focus on natural law legal theory.
According to natural law legal theory, the authority of legal standards necessarily derives, at
least in part, from considerations having to do with the moral merit of those standards. There
are a number of different kinds of natural law legal theories, differing from each other with
respect to the role that morality plays in determining the authority of legal norms. The
conceptual jurisprudence of John Austin provides a set of necessary and sufficient conditions
for the existence of law that distinguishes law from non-law in every possible world. Classical
natural law theory such as the theory of Thomas Aquinas focuses on the overlap between
natural law moral and legal theories. Similarly, the neo-naturalism of John Finnis is a
development of classical natural law theory. In contrast, the procedural naturalism of Lon L.
Fuller is a rejection of the conceptual naturalist idea that there are necessary substantive moral
constraints on the content of law. Lastly, Ronald Dworkins theory is a response and critique of
legal positivism. All of these theories subscribe to one or more basic tenets of natural law legal
theory and are important to its development and influence.
Table of Contents
1. Two Kinds of Natural Law Theory
2. Conceptual Naturalism
1. The Project of Conceptual Jurisprudence
2. Classical Natural Law Theory
3. The Substantive Neo-Naturalism of John Finnis
4. The Procedural Naturalism of Lon L. Fuller
5. Ronald Dworkins 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-McCords view, moral subjectivism
and moral intersubjectivism are also forms of moral realism. Strictly speaking, then, natural law
moral theory is committed only to the objectivity of moral norms.
The second thesis constituting the core of natural law moral theory is the claim that standards of
morality are in some sense derived from, or entailed by, the nature of the world and the nature
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 Augustines
famous remark, an unjust law is really no law at all.
The idea that a norm that does not conform to the natural law cannot be legally valid is the
defining thesis of conceptual naturalism. As William Blackstone describes the thesis, This 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 Austins own
theory of legal validity.
Another frequently expressed worry is that conceptual naturalism undermines the possibility of
moral criticism of the law; inasmuch as conformity with natural law is a necessary condition for
legal validity, all valid law is, by definition, morally just. Thus, on this line of reasoning, the
legal validity of a norm necessarily entails its moral justice. As Jules Coleman and Jeffrey
Murphy (1990, 18) put the point:
The important things [conceptual naturalism] supposedly allows us to do (e.g., morally evaluate
the law and determine our moral obligations with respect to the law) are actually rendered more
difficult by its collapse of the distinction between morality and law. If we really want to think
about the law from the moral point of view, it may obscure the task if we see law and morality
as essentially linked in some way. Moral criticism and reform of law may be aided by an initial
moral skepticism about the law.
There are a couple of problems with this line of objection. First, conceptual naturalism does not
foreclose criticism of those norms that are being enforced by a society as law. Insofar as it can
plausibly be claimed that the content of a norm being enforced by society as law does not
conform to the natural law, this is a legitimate ground of moral criticism: given that the norm
being enforced by law is unjust, it follows, according to conceptual naturalism, that it is not
legally valid. Thus, the state commits wrong by enforcing that norm against private citizens.
Second, and more importantly, this line of objection seeks to criticize a conceptual theory of
law by pointing to its practical implications a strategy that seems to commit a category
mistake. Conceptual jurisprudence assumes the existence of a core of social practices
(constituting law) that requires a conceptual explanation. The project motivating conceptual
jurisprudence, then, is to articulate the concept of law in a way that accounts for these pre-
existing social practices. A conceptual theory of law can legitimately be criticized for its failure
to adequately account for the pre-existing data, as it were; but it cannot legitimately be
criticized for either its normative quality or its practical implications.
A more interesting line of argument has recently been taken up by Brian Bix (1996). Following
John Finnis (1980), Bix rejects the interpretation of Aquinas and Blackstone as conceptual
naturalists, arguing instead that the claim that an unjust law is not a law should not be taken
literally:
A more reasonable interpretation of statements like an unjust law is no law at all is that unjust
laws are not laws in the fullest sense. As we might say of some professional, who had the
necessary degrees and credentials, but seemed nonetheless to lack the necessary ability or
judgment: shes no lawyer or hes 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 Bixs 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 Finniss view of
the Overlap Thesis, the essential function of law is to provide a justification for state coercion (a
view he shares with Ronald Dworkin). Accordingly, an unjust law can be legally valid, but it
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, Finniss naturalism is both an ethical theory and a theory of law.
Finnis distinguishes a number of equally valuable basic goods: life, health, knowledge, play,
friendship, religion, and aesthetic experience. Each of these goods, according to Finnis, has
intrinsic value in the sense that it should, given human nature, be valued for its own sake and
not merely for the sake of some other good it can assist in bringing about. Moreover, each of
these goods 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 Finniss view, the conceptual point of law is to facilitate the common good by providing
authoritative rules that solve coordination problems that arise in connection with the 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 communitys co-ordination
problems (and to ratifying, tolerating, regulating, or overriding co-ordination solutions from any
other institutions or sources of norms) for the common good of that community (Finnis 1980,
276).
Again, it bears emphasizing that Finnis takes care to deny that there is any necessary moral 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 Finniss 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 rulers use of authority is radically defective if he
exploits his opportunities by making stipulations intended by him not for the common good but
for his own or his friends or partys or factions advantage, or out of malice against some
person or group (Finnis 1980, 352). For the ultimate basis of a rulers moral authority, on this
view, is the fact that he has the opportunity, and thus the responsibility, of furthering the
common good by stipulating solutions to a communitys co- ordination problems (Finnis 1980,
351).
Finniss theory is certainly more plausible as a theory of law than the traditional interpretation
of classical naturalism, but such plausibility comes, for better or worse, at the expense of
naturalisms identity as a distinct theory of law. Indeed, it appears that Finniss natural law
theory is compatible with naturalisms historical adversary, legal positivism, inasmuch as
Finniss view is compatible with a source-based theory of legal validity; laws that are
technically valid in virtue of source but unjust do not, according to Finnis, fully obligate the
citizen. Indeed, Finnis (1996) believes that Aquinass classical naturalism fully affirms the
notion that human laws are posited.
4. The Procedural Naturalism of Lon L. Fuller
Like Finnis, Lon Fuller (1964) rejects the conceptual naturalist idea that there are necessary
substantive moral constraints on the content of law. But Fuller, unlike Finnis, believes that law
is necessarily subject to a procedural morality. On Fullers view, human activity is necessarily
goal-oriented or purposive in the sense that people engage in a particular activity because it
helps them to achieve some end. Insofar as human activity is essentially purposive, according to
Fuller, particular human activities can be understood only in terms that make reference to their
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 laws
essential function is to achiev[e] [social] order through subjecting peoples conduct to the
guidance of general rules by which they may themselves orient their behavior (Fuller 1965,
657).
Fullers functionalist conception of law implies that nothing can count as law unless it is
capable of performing laws essential function of guiding behavior. And to be capable of
performing this function, a system of rules must satisfy the following principles:
(P1) the rules must be expressed in general terms;
(P2) the rules must be publicly promulgated;
(P3) the rules must be prospective in effect;
(P4) the rules must be expressed in understandable terms;
(P5) the rules must be consistent with one another;
(P6) the rules must not require conduct beyond the powers of the affected parties;
(P7) the rules must not be changed so frequently that the subject cannot rely on them; and
(P8) the rules must be administered in a manner consistent with their wording.
On Fullers view, no system of rules that fails minimally to satisfy these principles of legality
can achieve laws essential purpose of achieving social order through the use of rules that guide
behavior. A system of rules that fails to satisfy (P2) or (P4), for example, cannot guide behavior
because people will not be able to determine what the rules require. Accordingly, Fuller
concludes that his eight principles are internal to law in the sense that they are built into 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 Fullers view, that they constitute a morality. Since these moral
principles are built into the existence conditions for law, they are internal and hence represent a
conceptual connection between law and morality. Thus, like the classical naturalists and unlike
Finnis, Fuller subscribes to the strongest form of the Overlap Thesis, which makes him a
conceptual naturalist.
Nevertheless, Fullers 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).
Fullers procedural naturalism is vulnerable to a number of objections. H.L.A. Hart, for
example, denies Fullers claim that the principles of legality constitute an internal morality;
according to Hart, Fuller confuses the notions of morality and efficacy:
[T]he authors insistence on classifying these principles of legality as a morality is a source of
confusion both for him and his readers. [T]he crucial objection to the designation of these
principles of good legal craftsmanship as morality, in spite of the qualification inner, is that 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 poisoners 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 Harts view, all actions, including virtuous acts like lawmaking and impermissible acts like
poisoning, have their own internal standards of efficacy. But insofar as such standards of
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 Fullers 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 Fullers 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, Fullers 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 Dworkins Third Theory
Ronald Dworkins so-called third theory of law is best understood as a response to legal
positivism, which is essentially constituted by three theoretical commitments: the Social Fact
Thesis, the Conventionality Thesis, and the Separability Thesis. The Social Fact Thesis asserts
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 laws conventional nature, claiming that the social facts
giving rise to legal validity are authoritative in virtue of a social convention. On this view, the
criteria that determine whether or not any given norm counts as a legal norm are binding
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 naturalisms Overlap Thesis;
according to the Separability Thesis, there is no conceptual overlap between the notions of law
and morality. As Hart more narrowly construes it, the Separability Thesis is just the 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 positivisms Social Fact Thesis on the ground that there are some legal
standards the authority of which cannot be explained in terms of social facts. In deciding hard
cases, for example, judges often invoke moral principles that Dworkin believes do not derive
their legal authority from the social criteria of legality contained in a rule of recognition
(Dworkin 1977, p. 40).
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 victims 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 Dworkins view, the
court decided the case by citing the principle that no man may profit from his own wrong as a
background standard against which to read the statute of wills and in this way justified a new
interpretation of that statute (Dworkin 1977, 29).
On Dworkins view, 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 Dworkins 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 societys 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 societys 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 Dworkins view,
adjudication is and should be interpretive:
[J]udges should decide hard cases by interpreting the political structure of their community in
the following, perhaps special way: by trying to find the best justification they can find, in
principles of political morality, for the structure as a whole, from the most profound
constitutional rules 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 judges opinion is itself a piece of legal philosophy, even when the
philosophy is hidden and the visible argument is dominated by citation and lists of facts
(Dworkin 1986, 90).
Dworkin believes his theory of judicial obligation is a consequence of what he calls the 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
judges 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 Dworkins view, while the legislature may legitimately enact laws that are justified by
arguments of policy, courts may not pursue such arguments in deciding cases. For a
consequentialist argument of policy can never provide an adequate justification for deciding in
favor of one partys claim of right and against another partys claim of right. An appeal to a pre-
existing right, according to Dworkin, can ultimately be justified only by an argument of
principle. Thus, insofar as judicial decisions necessarily adjudicate claims of right, they must
ultimately be based on the moral principles that figure into the best justification of the legal
practices considered as a whole.
Notice that Dworkins views on legal principles and judicial obligation are inconsistent with all
three of legal positivisms core commitments. Each contradicts the Conventionality 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
communitys law regardless of whether they have been formally promulgated. Most
importantly, Dworkins view contradicts the Separability Thesis in that it seems to imply that
some norms are necessarily valid in virtue of their moral content. It is his denial of the
Separability Thesis that places Dworkin in the naturalist camp.