Lawless law- first used by Gustar Radbruch (positive enthusiasts) during world war, it was revealed

that it did not provide resolution for the mankind.

What do you do with the law that are immoral. Is there a duty to obey such law even without
equality? (questions posed)

Approach to lawless law

 Classical natural law approach- lex iniusta non est lex- laws which are unjust cannot be called
laws (Aquinas). a stable state with unjust laws would be better because a chaos state would be
worse.

in Islam, a duty to obey the law, must be consistent with the Syariah law. In instances, where the law
does not conform the laws by god, would it be a must to obey the law? Would it be injustice, or
immorality? (reflect, what r your views)

 modern natural law approach- (John Lock), did not agree with Aquinas. they are not in favour of
Aquinas perspective. (if the parliament legislate law, they must agree with the law) a law is law.
There are more extreme group which are of the view is morality is what the law say what it is. If
the law says the male can get two females can get one, that is morality. The law In itself supplies
the word of justice. E.g.: The Syariah can do no wrong, it sets the morality. There’s another
group that says, validity if the law is valid even if it lawless, then it creates a duty for you to obey.
Another group is of the view that obedience to the law is in fact a democratic duty.
POSITIVISM

positivists
john austin
h.l.a. hart
hans kelsen

 Analytical jurisprudence- they observe. They do not question your morality/ the values within
you.
 They are not concern with the values of the law.
 They differ in their theory. But the approach is the same. ---They accept the law as it is.
 Law is law, morality is different.
 Law- pedigree test, perhaps in one legal system, what makes a law, a law? E.g.: provisions in
constitution in the making of law. Section 3 (law includes, -- which means it is not exhaustive)
 When law is passed as laws, the positivists accept it as it is.
 Positivism, the perspective is that, the law has connection with human will and there is none
that is superior above that.
 HLA Hart- a set of rules, primary rules have got to do with duty, secondary rules, power
conferring rules, and it is imposed upon human being.
 Hans kelsen, law come in the forms of norms, norms of actions.
 The law may have any content moral or immoral and there is no concern as they accept the law
as it is.
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
a. The Project of Conceptual Jurisprudence
b. 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 legalauthority from the
social criteria of legality contained in a rule of recognition (Dworkin 1977, p. 40).
In Riggs v. Palmer, for example, the court considered the question of whether a murderer could take
under the will of his victim. At the time the case was decided, neither the statutes nor the case law
governing wills expressly prohibited a murderer from taking under his victim's will. Despite this, the
court declined to award the defendant his gift under the will on the ground that it would be wrong to
allow him to profit from such a grievous wrong. On Dworkin's view, the court decided the case by
citing "the principle that no man may profit from his own wrong as a background standard against
which to read the statute of wills and in this way justified a new interpretation of that statute"
(Dworkin 1977, 29).
On Dworkin's view, the Riggs court was not just reaching beyond the law to extralegal standards when
it considered this principle. For the Riggs judges would "rightfully" have been criticized had they failed
to consider this principle; if it were merely an extralegal standard, there would be no rightful grounds
to criticize a failure to consider it (Dworkin 1977, 35). Accordingly, Dworkin concludes that the best
explanation for the propriety of such criticism is that principles are part of the law.
Further, Dworkin maintains that the legal authority of standards like the Riggs principle cannot derive
from promulgation in accordance with purely formal requirements: "[e]ven though principles draw
support from the official acts of legal institutions, they do not have a simple or direct enough
connection with these acts to frame that connection in terms of criteria specified by some ultimate
master rule of recognition" (Dworkin 1977, 41).
On Dworkin's view, the legal authority of the Riggs principle can be explained wholly in terms of its
content. The Riggs principle was binding, in part, because it is a requirement of fundamental fairness
that figures into the best moral justification for a society's legal practices considered as a whole. A
moral principle is legally authoritative, according to Dworkin, insofar as it maximally conduces to the
best moral justification for a society's legal practices considered as a whole.
Dworkin believes that a legal principle maximally contributes to such a justification if and only if it
satisfies two conditions: (1) the 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.