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St. Thomas Aquinas on the Natural Law.

 Aquinas bases his doctine on the natural law, as one would

expect, on his understanding of God and His relation to His

creation. He grounds his theory of natural law in the notion of an

eternal law (in God). In asking whether there is an eternal law, he

 begins by stating a general definition of all law: Law is a dictate of

reason from the ruler for the community he rules. This dictate of

reason is first and foremost within the reason or intellect of the

ruler. It is the idea of what should be done to insure the well

ordered functioning of whatever community the ruler has care for.(It is a fundamental tenet of Aquinas' political theory that rulers

rule for the sake of the governed, i.e. for the good and well-being

of those subject to the ruler.) Since he has elsewhere shown that

God rules the world with his reason (since he is the cause of its

 being (cf. ST Ia 22, 1-2), Aquinas concludes that God has in His

intellect an idea by which He governs the world. This Idea, in God,

for the governance of things is the eternal law. (Summa

 TheologiaeI-IIae, 91, 1)

Next, Aquinas asks whether there is in us a natural law. First, he

makes a distinction: A law is not only in the reason of a ruler, but

may also be in the thing that is ruled. In the case of the Eternal

Law, the things of creation that are ruled by that Law have it

imprinted on the them through their nature or essence. Since

things act according to their nature, they derive their proper acts

and ends (final cause) according to the law that is written into

their nature. Everything in nature, insofar as they reflects the

order by which God directs them through their nature for their

own benefit, reflects the Eternal Law in their own natures. (S.T. I-

IIae, 91, 2)

 The Natural Law, as applied to the case of human beings, requires

greater precision because of the fact that we have reason and free

 will. It is the our nature humans to act freely (i.e. to be provident

for ourselves and others) by being inclined toward our proper acts

and end. That is, we human beings must exercise our natural

reason to discover what is best for us in order to acheive the end

to which their nature inclines. Furhtermore, we must exercise our

freedom, by choosing what reason determines to naturally suitedto us, i.e. what is best for our nature. The natural inclination of

humans to acheive their proper end through reason and free will

is the natural law. Formally defined, the Natural Law is humans'

participation in the Eternal Law, through reason and will.

Humans actively participate in the eternal law of God (the

governance of the world) by using reason in conformity with the

Natural Law to discern what is good and evil.

In applying this universal notion of Natural Law to the human

person, one first must decide what it is that God has ordained

human nature to be inclined toward. Since each thing has a

nature given it by God, and each thing has a natural end, so there

is a fulfillment to human activity of living. When a person

discovers by reason what the purpose of living is, he or shediscover his or her natural end is. Accepting the medieval dictum

"happiness is what all desire" a person is happy when he or she

achieves this natural end.

 Aquinas distinguishes different levels of precepts or commands

that the Natural Law entails. The most universal is the command

"Good is to be done and pursued and evil avoided." This applies to

everything and everyone, so much so that some consider it to be

more of a description or definition of what we mean by "good." For

these philosophers, a thing is "good" just in case it is pursued or

done by someone. Aquinas would agree with this to a certain

extent; but he would say that that is a definition of an apparent

good. Thus, this position of Aquinas has a certain

phenomenological appeal: a person does anything and everythinghe or she does only because that thing at least "appears" to be

good. Even when I choose something that I know is bad for myself,

I nevertheless chooses it under some aspect of good, i.e. as some

kind of good. I know the cake is fattening, for example, and I don't

choose to eat it as fattening. I do, however, choose to eat it as tasty

(which is an apparent, though not a true, good).

On the level that we share with all substances, the Natural Law

commands that we preserve ourselves in being. Therefore, one of

the most basic precepts of the Natural Law is to not commit

suicide. (Nevertheless, suicide can, sadly, be chosen as an

apparent good, e.g. as the sessation of pain.) On the level we share

 with all living things, the Natural Law commands that we take

care of our life, and transmit that life to the next generation. Thus,

almost as basic as the preservation of our lives, the Natural Law

commands us to rear and care for offspring. On the level that is

most specific to humans, the fulfillment of the Natural Law

consists in the exercize those activities that are unique of

humans, i.e. knowledge and love, and in a state that is also

natural to human persons, i.e. society. The Natural Law, thus,

commands us to develop our rational and moral capacities bygrowing in the virtues of intellect (prudence, art, and science) and

 will (justice, courage, temperance). Natural law also commands

those things that make for the harmonious functioning of society

("Thou shalt not kill," "Thou shalt not steal.") Human nature also

shows that each of us have a destiny beyond this world, too. Man's

infinite capacity to know and love shows that he is destined to

know and love an infinite being, God.

 All of these levels of precepts so far outlined are only the most

 basic. "The good is to be done and pursued and evil is to be

avoided" is not very helpful for making actual choices. Therefore,

 Aquinas believes that one needs one's reason to be perfected by

the virtues, especially prudence, in order to discover precepts of

the Natural Law that are more proximate to the choices that one

has to make on a day to day basis.

 The Thomistic notion of Natural Law has its roots, then, in a quite

 basic understanding of the universe as caused and cared for by

God, and the basic notion of what a law is. It is a fairly

sophisticated notion by which to ground the legitimacy of human

law in something more universal than the mere agreement and

decree of legislators. Yet, it allows that what the Natural Law

commands or allows is not perfectly obvious when one gets to the

proximate level of commanding or forbidding specific acts. It

grounds the notion that there are some things that are wrong,

always and everywhere, i.e. "crimes against humanity," while

avoiding the obvious dificulties of claiming that this is determined

 by any sort of human concensus. Nevertheless, it still sees the

interplay of people in social and rational discourse as necessary todetermine what in particular the Natural Law requires.

 THE NATURAL LAW THEORY of THOMAS AQUINAS

Thomas D. D’Andrea, University of Cambridge

 Thomas Aquinas is generally regarded as the West’s pre-eminent

theorist of the natural law, critically inheriting the main traditions

of natural law or quasi–natural law thinking in the ancient world

(including thePlatonic, and particularly Aristotelian and Stoic

traditions) and bringing elements from these traditions into

systematic relation in the framework of a metaphysics of creation

and divine providence. His theory sets the terms of debate for

subsequent natural law theorizing.

 The fundamentals of Aquinas’s natural law doctrine are contained

in the so-called Treatise on Law in Thomas’s masterwork,

theSumma Theologiae, comprising Questions 90 to 108 in the

first part of the second part of the three-partSumma.[1] Thomists

have rightly expressed reservations about the procedure of

surgically extracting the teaching in those Questions (or often the

more strictly philosophical Questions 90 to 97) and representing it

as Thomas’s natural law thinkingtout court. Indeed, there is less

possibility of distorting Thomas’s theory if one is careful to read

the Treatise on Law in the context of the conceptual architecture

of theSumma Theologiae as a whole.

 TheSumma is Thomas’s mature theological synthesis, aimed at

providing beginners in theology with a systematic, overall account

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of both the divine nature, as knowable by faith-enlightened

reason, and the divine plan and work of creating and redeeming

the cosmos and ordaining it to a final transfiguration in glory at

the end of history. Thomas’s method in composing the work, as he

states in the work’s Prologue, is to treat of the whole of revealed

theology (sacra doctrina) as briefly and clearly as possible, but

according to a strict order whereby the very contours of the

subject matter of the science dictate the architectonic plan and

the sequential treatment of questions within the work. The first

Question of theSumma so treats the nature and scope of theology

itself, and once this is established, the work considers the very

existence and nature of God: God first in His own inner and

 Trinitarian life, and then in His external activity of giving being to

creatures and ordaining them to perfection or full realization for

the manifestation or communication of His own glory.

 The Summa and theology itself are all about God. The divine

nature is the subject matter of the science[2], and the very first

principles or premises that serve as inferential starting points in

the systematic inquiry of theology are those items that God has

revealed to us concerning His nature and His plan and purpose in

creating the cosmos.[3] God Himself and subsequently all creation

are studied in the light of these starting points or first principles.

In the order of theSumma, the first part of the work treats the

divine nature in itself and then the free creative production of

creatures by God (angels, humans, and all other animate and

inanimate beings). The second part treats the grace-aided

attainment of a cognitive-affective union with God by human

activity (which union represents the fullest realization of human

nature, as we shall see), and the third part treats Christ and his

Church and sacraments, the necessary means for man’s union

 with God.

Law, of its various sorts, has a role to play in humans’ full

realization of their nature by free acts (acts over which they have a

certain degree of control and dominion). What role? To ask this

question is to seek to grasp Thomas’s natural law teaching in thecontext of his overall metaphysical cosmology. According to

 Thomas, human nature, a psychosomatic unity, is perfected or

fully realized by harmonious and habitual excellence in the

exercise of its intrinsic capacities and powers (e.g. cognitive,

creative, affective, productive). Highest among these capacities— 

the capacity with the most potential to enrich and enlarge human

nature and so to realize it most completely—is the human

intellect, with its power to come to some understanding of the

nature of whatever exists. Following Aristotle, Thomas teaches

that through intellect the human soul is potentially all things: it

ranges over the entire universe of what is, and by acts of

understanding and inferring, it in a certain way brings the entire

universe into the soul. Put another way, in conjunction with the

 will the intellect expands the soul to become all that is by a

cognitive and affective, but not a physical, union. Again with

 Aristotle, Thomas maintains that the highest object of this highest

human power, (and so the appropriate but often hidden or

misperceived ultimate and crowning end of all human excellence-

in-activity and striving) is cognitive-affective union with the first

uncaused cause of the totality of things:Deus (in Aquinas’s Latin)

or God.

For Thomas, in contradistinction to Aristotle but closer to the

teaching of Plato, this first uncaused cause is not merely the best,

most self-sufficient, most fully realized being in the cosmos, but

also the artisan-creator and ruler of the cosmos. This first, self-

existent, and infinite being loves the world into existence,

according to the model of His own eternal creative ideas, and

orders the totality of individual things, notes as it were in a

symphony, to one integrated end or purpose: a cosmic common

good.

Created beings without intellect or will (whether animate or

inanimate) are willed into being and directed toward their own

perfection in the context of the perfection of the whole, which

perfection they each approach automatically or spontaneously and

 without understanding or resistance. Creatures endowed with

intellect and will (angels and humans), however, only fully realize

their own potentialities consciously or by uncoerced intelligible

decision, and so are able to ratify or to frustrate God’s creative

purpose. It is here that we see the role in the divine plan and in

human life forlaw, as human beings characteristically

understand the term: law, Thomas will have it, is an extrinsic

source or principle of human perfection or full human

development. God, he states, “instructs us by means of His Law.”[4]

 Thomas argues outright in the very first article of the first

question of the Treatise on Law, that law (lex) essentially can be

seen as an ordinance of reason directing activity toward some end,

goal, or purpose, and the highest end or purpose we have as

humans is our ultimate fulfillment, the full realization of our

nature, or “happiness” as is commonly said in English. Hence all

law is meant to sub-serve human happiness.[5] But law has by

common acknowledgement and usage a social function as well: it

directs the activity of somecollectivity to a common goal, and it

does this authoritatively. So the true purpose of law is to sub-

serve the happiness of all in the community.[6] But law does not

merely recommend or suggest, it binds and commands.[7] Lawmakers in our familiar experience are thus recognized

authority figures within a social community who address

themselves to the reason of the members of that community,

commanding them to shape their actions in certain specified

 ways.[8] Because law has this essentially directive function, in

order for an ordinance of reason from a recognized authoritative

source to have the status oflaw, it must also be promulgated, or

made public, so that it can perform its coordinating and directing

 work. Hence we have Thomas’s famous lapidary definition of law

in the Treatise: it is “an ordinance of reason for the common good,

made by him who has care of the community, and promulgated.”[9]

God, the ultimate cause of all being, activity, and development in

everything that is, is nothing if not caring for the community of

creation, and as universal creator He has authority to the highest

degree with respect to His intelligent creatures. Is He not the

lawmaker-lawgiver par excellence? He is, Thomas thinks, since

God satisfies the condition for this appellation perfectly.

Elaborating on an earlier theological tradition but making a

straightforwardly metaphysical point, Thomas maintains that we

have a law of God’s making that is co-eternal with His own nature.

 This is the Eternal Law (lex aeterna) through which the divineintellect creatively designs and directs all creatures to a common

end (the common end of the universe), promulgating in time this

eternal ordinance of His reason by the very act of creating beings

and endowing them with spontaneous natural inclinations to

move toward their own perfection in the context of the universe

and its overall and unified perfection.

Created beings without intellect and will observe the eternal law,

the eternal directives in the creative mind of God, spontaneously

or automatically and perfectly. In the case of human beings, this

eternal law directs them spontaneously toward their full andcomplete good by ordaining their essential nature to acts of

understanding and desire for the goods constitutive of human

perfection or fulfillment. But human beings have each their own

intellect and will, so their spontaneous inclination and

subsequent movement toward that full and complete good is

 brought about (or not, since it can be resisted or rejected) by

conscious ratification and cooperation, that is, knowingly and

 willingly. Thus, in the human world we have the Eternal Law as

received and understood from the inside, as it were, and observed

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only conditionally: when humans correctly understand, desire,

and act for the goods of human nature (food, drink, clothing,

shelter, creative activity, knowledge, friendship, etc.) they are

freely enacting observance to the Eternal Law. They are not

making a law for themselves, but arediscoveringit and

appropriating it for themselves. They are discovering and

potentially ratifying in action the divine design-plan for their

nature, to which non-rational creatures witness in whatever they

do and undergo, although they are neither cognizant of this plan

as law, nor capable of knowingly instantiating or resisting it.

 This for Thomas finally is the natural law (lex naturalis): a sharing

from within (or participation) of the Eternal Law, but not, Thomas

insists, something otherwise different from that first and highest

law in the mind of God: “the natural law is nothing else than the

rational creature’s participation of the eternal law.”[10] This

participation is available to all humans independently of any

reception on their part of divine supernatural revelation: the

natural law is observed whenever humans both engage in correct

practical reasoning about what is good and best for them overall

in any given situation[11] and when they act in accord with that

rational determination.[12]

 The natural law, according to Aquinas, has certain basic and self-

evident precepts or dictates, dictates knowable to any human with

a properly functioning intellect and a modicum of experience of

the world. Paraphrasing Thomas, first and fundamental, is the

precept that, “anything good [i.e. that which perfects human

nature] is to be pursued [is the appropriate object of human

activity], and the opposite of this good, evil, is to be avoided in all

human acts.” Other basic precepts, but with specific content,

 would include those such as: “bodily health is a good to be

pursued and bodily harm avoided,” or “knowledge is a good to be

pursued and ignorance and falsehood avoided,” or “friendship is a

good to be pursued and those things opposed to it avoided.”[13]

In each case, human reason grasps that some object is perfective

of human nature and so directs that nature toward it by an at

least tacit precept or action-guide, while directing it away from

that good’s contrary. The basic precepts of the natural law

command human nature to seek obvious human goods; when the

status of some presumptive object of human action as a good is

less evident, investigation is required to determine its status. Not

all, however, are equally fit for this task of discernment about

 what is good for human nature in general and good for this

particular human being as such.[14]

 This natural law instantiating practical reasoning about what is

 best for humans by nature (and therefore about what is ordained

 by God) spontaneously and appropriately results, as Thomas

observes, in the construction of man-made laws. Although God’s

design-plan for the whole of humanity (for all human acts

throughout cosmic history, that is, and for their orchestration

toward the common good of the cosmos) is perfectly complete and

specified in all detail in the divine mind, that portion of the

Eternal Law which concerns humankind in its nature and in its

divinely foreknown history is not fully graspable by the human

intellect. Because of this inherent limitation of the human mind,

humans must make their own laws to supplement that portion of

the Eternal Law that they do spontaneously and readily grasp

(which portion includes the rudimentary parts of the natural law)[15], to direct themselves in community to their fulfillment. They do

this correctly either by deriving specific norms from the most

 basic and general principles or precepts of the natural law[16], or

 when they give specific shape to one of these basic and discovered

dictates or principles appropriate for a particular time and

place[17].

 The former derivation of human laws from the natural law

 Thomas refers to as “the law of nations” (ius gentium); the latter he

refers to as civil law (lex civilis)[18]: both forms of law are, inasmuch

as they are legitimately derived from the dictates of the natural

law, normative. That is, they comprise rational requirements forright human action on Aquinas’s view. Any human law, though,

that directly contravenes a dictate of the natural law[19] ipso

 facto fails as a law and has the status of an irrational command

instead. Such commands ought only be observed for prudential

reasons, such as to avoid some greater harm that might arise in

the social order from the failure to observe what is really only a

pseudo-law.[20]

Estrada vs Escritor (August 4, 2003)

Estrada vs. Escritor AM P-02-1651, August 4, 2003

FACTS:

Soledad Escritor is a court interpreter since 1999 in the RTC of

Las Pinas City. Alejandro Estrada, the complainant, wrote to

 Judge Jose F. Caoibes, presiding judge of Branch 253, RTC of Las

Pinas City, requesting for an investigation of rumors that Escritor

has been living with Luciano Quilapio Jr., a man not her

husband, and had eventually begotten a son. Escritor’s husband,

 who had lived with another woman, died a year before she entered

into the judiciary. On the other hand, Quilapio is still legally

married to another woman. Estrada is not related to either

Escritor or Quilapio and is not a resident of Las Pinas but of

Bacoor, Cavite. According to the complainant, respondent should

not be allowed to remain employed in the judiciary for it will

appear as if the court allows such act.

Escritor is a member of the religious sect known as the Jehovah’s

 Witnesses and the Watch Tower and Bible Tract Society where her

conjugal arrangement with Quilapio is in conformity with their

religious beliefs. After ten years of living together, she executed on

 July 28, 1991 a “Declaration of Pledging Faithfulness” which was

approved by the congregation. Such declaration is effective when

legal impediments render it impossible for a couple to legalize their

union. Gregorio, Salazar, a member of the Jehovah’s Witnesses

since 1985 and has been a presiding minister since 1991, testified

and explained the import of and procedures for executing the

declaration which was completely executed by Escritor and

Quilapio’s in Atimonan, Quezon and was signed by three

 witnesses and recorded in Watch Tower Central Office.

ISSUE:

 Whether or not respondent should be found guilty of the

administrative charge of “gross and immoral conduct” and be

penalized by the State for such conjugal arrangement.

HELD:

 A distinction between public and secular morality and religious

morality should be kept in mind. The jurisdiction of the Court

extends only to public and secular morality.

 The Court states that our Constitution adheres the benevolent

neutrality approach that gives room for accommodation of

religious exercises as required by the Free Exercise Clause. This

 benevolent neutrality could allow for accommodation of morality

 based on religion, provided it does not offend compelling state

interests.

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 The state’s interest is the preservation of the integrity of the

 judiciary by maintaining among its ranks a high standard of

morality and decency. “There is nothing in the OCA’s (Office of

the Court Administrator) memorandum to the Court that

demonstrates how this interest is so compelling that it should

override respondent’s plea of religious freedom. Indeed, it is

inappropriate for the complainant, a private person, to present

evidence on the compelling interest of the state. The burden of

evidence should be discharged by the proper agency of the

government which is the Office of the Solicitor General”.

In order to properly settle the case at bar, it is essential that the

government be given an opportunity to demonstrate the

compelling state interest it seeks to uphold in opposing the

respondent’s position that her conjugal arrangement is not

immoral and punishable as it is within the scope of free exercise

protection. The Court could not prohibit and punish her conduct

 where the Free Exercise Clause protects it, since this would be an

unconstitutional encroachment of her right to religious freedom.

Furthermore, the court cannot simply take a passing look at

respondent’s claim of religious freedom but must also apply the

“compelling state interest” test.

IN VIEW WHEREOF, the case is REMANDED to the Office of the

Court Administrator. The Solicitor General is ordered to intervene

in the case where it will be given the opportunity (a) to examine

the sincerity and centrality of respondent's claimed religious belief

and practice; (b) to present evidence on the state's "compelling

interest" to override respondent's religious belief and practice; and

(c) to show that the means the state adopts in pursuing its

interest is the least restrictive to respondent's religious freedom.

 The rehearing should be concluded thirty (30) days from the

Office of the Court Administrator's receipt of this Decision.

Escritor was therefore held not administratively liable for grossly

immoral conduct. Escritor’s conjugal arrangement cannot be

penalized as she has made out a case for exemption from the law

 based on her fundamental right to religion. The Court recognizes

that state interests must be upheld in order that freedoms— 

including religious freedom—may be enjoyed.

In the area of religious exercise as preferred freedom, however,

man stands accountable to an authority higher than the state,

and so the state interest sought to be upheld must be so

compelling that its violation will erode the very fabric of the state

that will also protect the freedom. In the absence of a showing

that the state interest exists, man must be allowed to subscribe to

the Infinite.

 A Summary of John Finnis’s Theory of Natural Law

Posted on  January 3, 2015 by hughmccarthy23

So far I have looked at two theories of physical law.Lewissays

that physical laws are descriptive statements made humans,

 whereas Armstrong says that law are relations between

Universals, and so exist out there in the real world.

I want to get a similar contrast within legal law. So far we

have Kelsen’s theory, where laws are normative statements made

 by humans. We can contrast this with a theory of natural law.

 According to natural law, there are laws that exist out there, that

are true whether we know them or not.

Natural law has existed as an idea for millennia. I am focussing on

the workNatural Law and Natural Rights, a seminal restatement of

the doctrine by John Finnis.

In this post I will just summarise Finnis’s theory. I also have some

criticisms, and an attempt to combine this theory with Kelsen’s

theory.

 John Finnis

 John Finnis is an Australian legal scholar who grew up in Adelaide before getting a Rhodes scholarship to Oxford. He is

currently professor of law at Oxford. Finnis publishedNatural Law

and Natural Rights in 1980, and the book is considered a seminal

restatement of the natural law doctrine. Finnis is a practising

catholic, and a fair proportion of his work (inNLNR and

subsequent articles) deals with the relationship between natural

law and Christian/Catholic values.

 The Seven Basic Goods

 The central object of Finnis’s theory is a set of seven fundamental

‘goods’ for humankind. These goods are:

Life

Knowledge (for its own sake)

Friendship and Sociability

Play (for its own sake)

 Aesthetic Experience

Practical Reasonableness, i.e. the ability to reason

correctly about what is best for yourself, and to act on those

decisions.

Religion i.e. a connection with, and participation with,

the orders that transcend individual humanity

 The basic goods serve as an explanation ofwhy we do things. Any

 worthwhile activity is worth doing because it participates in one or

more basic goods.

Other positive qualities, like freedom or humility, are merely

methods by which we can achieve one or more of the basic goods.

Other motivations for action, such as the pursuit of pleasure or

material gain, are misguided and motivated by human inclination

rather than practical reason.

 The Reality of the Basic Goods

 The statement ‘these are the seven basic goods’ is just as true as

the statement ‘there are infinitely many primes.’ The basic goodsexist independent of human thought, and so we can put them in

‘reality’ in the same sense that maths lives in reality. The basic

goods, of course, do not have physical form.

 Where do these goods come from?

 We can distinguish betweentheoretical reason, which describes

 what is true, with practical reason, which describes how to act.

 Theoretical reason has many principles that cannot be proved,

such as:

the validity of deductive inferences

the principle of induction

the assumption that experience corresponds to reality

the preference for a simple explanation over a complex

onePrinciples like these cannot be derived from the principles of logic,

andcan be meaningfully denied. But if you deny a principle like

this, you will find it impossible to pursue knowledge and you won’t

 be able to get anywhere at all. Moreover, you can justseethat

these principles are true by looking around.

 The basic goods are the same. They cannot be derived from God’s

law, or logic, or the inclinations of a human brain. But if you deny

them, you cannot get anywhere in the realm of practical reason,

and you cannot make decisions about what is best for your life.

 And, just with theoretical principles, it’sobvious that these goods

are basic. In this way, the seven basic goods are self-evident.

It is important to make a distinction here. It isnot true that

everyone is automatically aware of all the principles of theoretical

rationality – a toddler may not understand amodus

 ponens argument. But such principles are known to every

educated, mature person. In the same way, Finnis acknowledges

that there are people who do not respect the basic goods; it’s just

that those people are wrong.

 The Nine Requirements of Practical Reason

One of the seven basic goods is practical reason. You participate

in this good by making rational decision that maximise your

participation in theother goods – by choosing good projects to

pursue, by making moral decisions, and so on. In order to

correctly participating in practical reason, you need to fulfil nine

sub-requirements. These requirements are self-evident in the

same way that the basic goods are self-evident. The nine

principles are:

1. You should view your life as a whole, and not live

moment to moment

2. You naturally have to prioritise certain goods over others

(e.g. an academic would prioritise knowledge higher than a

tradie), but you should always do so with good reason. You

should never arbitrarily discount one of the basic goods.

3. Basic goods apply equally to all people. You can be self-

interested to the extent that you are in the best position to

look after yourself, but you should always take into account

the good of others.

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4. You should make sure that you do not become obsessed

 with a particular project, and keep the perspective that the

project is a participation of a basic good.

5. You should actually do projects and make an effort to

improve – don’t just sit around or repeat old habits

6. You should calculate and plan your actions so that they

are the most efficient (in a utilitarian sense) and do the most

good.

7. You should never commit an act that directly harms a

 basic good, even if it will indirectly benefit a different basic

good. For example, you should not kill even if it will indirectlysave more lives later.

8. You should foster the common good of the community.

9. You should act according toyour conscience and

practical reason, not the authority of someone else.

Making Decisions using the Seven Goods and the Nine

Requirements

 The seven goods and the nine requirements apply equally to

everyone. To make specific decisions in your life, you think

reasonably, in accordance with the nine requirements, and decide

how you will participate in the basic goods.

 There is plenty of scope for discretion in this scheme. If you are

deciding what to do with your day, you could choose to listen to

music, or to go hiking, or to go to a party, or to volunteer fordisaster relief. These are all, in principle, valid choices. Some

choicesare wrong, e.g. murdering someone, or spending all day in

an empty room doing nothing, but there are many equally correct

choices.

 The seven goods are all equally fundamental, and do not exist in a

hierarchy. Therefore, although some acts are wrong (because they

do not participate in a basic good), there is no single correct act.

 This is an important distinction between theoretical and practical

reason: in theoretical reason, if two statements contradict then at

least one of them must be false. In practical reason, there can be

two contradictory acts that arebothmorally correct choices. It is

up to a human’s free will to choose which act they will adopt.

In this way, the seven goods and the nine requirements specify the

overarching structure and goals, but donot determine the

minutiae of day-to-day life, or even big decisions like the choice of

career.

 The Common Good and the Need for Authority

Humans naturally need to live in groups. This is both required

expressly by the basic good of Sociability, and implicitly by all the

other goods, because we are most productive when we are working

together. Hence, one of the nine requirements of practical reason

is ‘Contribute to the common good.’

 The common good is the situation where each member of the

community can effectively pursue the basic goods for themselves.

Like one of the basic goods, the common good is neverachieved, it

is only participated in.

 Authority

 To best achieve the common good, certain acts need to be

performed by thewholecommunity rather than specific people.

Examples are respect for the rules of games, collaboration within

knowledge, spirituality within the community, or respect for each

other’s lives and safety. Such co

Such community-wide actions require coordination, and

coordination requires authority (not necessarily coercive

authority). Such coordinating authorities include churches, team

captains, university heads of department, and governments.

One of the basic goods is practical reasonableness. It is necessary

that every member of a society be able to make decisions for

themselves. Authority figures therefore need to compromise

 between coordinating society effectively, and granting people the

ability to pursue their own ends in the manner they choose.

Natural LawOne of the strongest and most effective sources of authority is the

law, and therefore, Finnis concludes, law is a morally necessary

component of society.

How is the specific content of law morally determined?

Some laws directly serve basic goods (e.g. the law against murder).

Most laws however, are not so direct – instead they create a stable

society in which people have the freedom and ability to pursue the

 basic goods. Before, I said that each person is free to choose the

specific details of how they achieve the basic goods – in the same

 way, the authors of the law are free to choose the specifics of the

legal system. As long as the legal system is in service to the basic

goods and in accordance with practical reason, it is a morally

‘good’ legal system. Of course, some legal systems will be better

than others. A society deciding between legal systems is equivalent

to an individual deciding between conflicting moral decisions.

 What features should a legal system have?

 The law should bring specificity, clarity and predictability into

human interactions, and so it should obey public and preciserules. These rules should also regulate the creation of new rules.

Finnis agrees with Lon Fuller’s eight requirements of ‘the inner

morality of law,’ that laws should be:

1. Prospective, not retroactive

2. Possible to comply with

3. Promulgated

4. Clear

5. Coherent

6. Stable enough that people can use the law as a guide

7. The making of new laws should be guided effectively

 within the legal system

8. People who have authority should be

 A. Accountable

B. Consistent and acting in good faith

(These eight requirements are posed by Finnis, but agree closely

 with Fuller’s requirements)

 The Moral Force of Law

If you accept a legal system, then you have alegalobligation to

obey every law However, a legal system, when implemented

correctly, is a very important source ofguidance for people, and

people have a moral obligation to obey the law. The argument runs

like this:

I ought to pursue the basic goods

Society needs to coordinate in order to best achieve the

 basic goods

 The law is an effective way of coordinating society this

 way

 Therefore:

I ought to obey the law.

 Therefore you have both alegalobligation and amoral obligation

to respect and obey the law. The legal obligation is invariant in

force – the law just has offences and sanctions; no offence or

sanction islegally worse than any other. The moral obligation has

different weight depending on the specific offense, because some

offences damage the legal system more than others. If a legal

obligation is in line with a moral obligation (e.g. ‘Do not murder’)

then youalso have the non-legal obligation to not perform that act

for moral reasons.

In this way, the law is not just a coercive order. Certainly, in an

imperfect society, the law needs to be coercive in order to regulate

people who behave badly. These bad people follow the law in order

to avoid sanctions. But many people follow the law because they

 believe that following the law is morally correct. In a perfect

society, there would be law without sanctions that functioned only

to coordinate people.

 What about when the law conflicts with morals?

 A classic interpretation of natural law is the doctrine oflex injusta

non est lex: that morally wrong laws are not laws at all. Finnis first

asserts that this isnot the primary concern of a theory of natural

law – the primary concern is discerning a system of common good,

and determing whether/how a legal system can best achieve that.

 The issue of immoral laws is nonetheless worth discussing, and

Finnis does indeed discuss it.

I have already talked about how laws have both moral and legal

obligation. Finnis’ explanation oflex injusta non est lex is quite

simple: a morally unjust law imposes legal obligation, but no

moral obligation. Specifically, if we look at the argument from

 before:

I ought to pursue the basic goods

Society needs to coordinate in order to best achieve the

 basic goods

 The law is an effective way of coordinating society this

 way,

 Therefore

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I ought to obey the law.

If a law is immoral/unjust, we can reject premise number 3, and

so there is no moral obligation to obey the law. We still have the

legal obligation that we should obey the law if we want to avoid the

sanction. In this sense the law is still legally valid, but it is not

morally valid.

 There is another consideration that can sometimes provide a

moral obligation to obey immoral laws. Imagine that an act X is

morally wrong, but is required by law. Since the law has moral

force, it ismorally important to ensure that the law is stable. Therefore citizens have a moral obligation to perform X for the

sake of not undermining the legal system, and legal officials have a

moral obligation enforce X for the same reason. This moral

obligation will not necessarily trump the moral obligation that X

not be performed, but it is possible that it will trump that

obligation. In this way, it can sometimes be morally correct to obey

the law, even if the law itself is not morally valid.

 The Diagram

So where does Finnis’s account of law fit into the diagram? We

have already seen that the basic goods and the requirements of

practical reason exist in reality. However, the specific laws of a

society donot exist in reality – they are not specified by the general

nature of the basic goods and requirements. However, the goods

and requirements grant lawsmoral validity, and this validity

isobjective. If we accept Kelsen’s premise that laws are normative

statements (Finnis doesn’t go into this, but it clears things up),

then natural laws are a set ofcorrect normative statements. This

gives us:

Source: Finnis, J. (2011, first published 1980).Natural law and

natural rights. Oxford: Oxford University Press.

 John Finnis has retired from his post at Oxford and this has led to

a great outpouring of books from Oxford University Press. These

include a five-volume collection of Finnis's essays, spanning topics

in ethics, political philosophy, jurisprudence and theology (2011a),and a new edition of his magnum opus,Natural Law and Natural

Rights, including a postscript responding to critics (2011b). The

present volume continues this prolific output. It is a collection of

essays reflecting on Finnis's contributions to the above fields,

edited by two of Finnis's former doctoral students, and concluding

 with a lengthy response by Finnis himself.

Finnis is one of the leading figures in the revival of classical

natural law thinking in ethics and jurisprudence that has

occurred since the 1980s. The broadly Thomist version of natural

law theory he developed in collaboration with Germain Grisez and

 Joseph M. Boyle is widely known as the 'new natural law theory',

although Finnis disdains the label (468 n. 31). Anyone who isinterested in the new natural law theory should check out this

 book. This is because the range of topics covered in the collection

provides an excellent snapshot, for better or for worse, of the

central concerns and debates characteristic of the new natural law

outlook.

 The collection is divided into five parts. The first part, on reasons,

goods and principles, reflects upon the structure of the new

natural law approach to ethics. This is followed (for reasons I will

return to below) by a part dealing with the role of intentions in

determining the moral status of actions. The third part, on justice,

rights and wrongdoing, turns to questions of political philosophy

and bioethics, while the fourth deals with philosophy of law. Thefinal section consists of two essays on the connection between

natural law and religion.

 This is an imposing book, covering a lot of ground. It made a

disheartening thud when it landed on my desk and I gazed upon it

 balefully for several weeks before summoning the courage to crack

it open. The essays are generally of high quality, but one suspects

that only a few people will be interested in all of them. Finnis

himself is no doubt among this select number, which illustrates

the impressive breadth of his philosophical work and interests. I

fear I will try the patience of some readers just by mentioning all

the chapters, but here we go.

 The new natural law theory offers an integrated framework for

dealing with philosophical questions in ethics, politics and

 jurisprudence. The new natural law approach to ethics rests on

two fundamental ideas: first, the plurality of the basic forms of

good and the associated principles of practical reasoning; and,

second, the priority of the good over the right. The new natural

law ethics holds that there is a plurality of intrinsic goods, all of

 which are basic and none of which can be reduced to any of the

others. Finnis identifies seven human goods inNatural Law and

Natural Rights, although he has since modified his account (cf.

2011a, vol. 3, 88).

 The opening two chapters, by Joseph Raz and Roger Crisp, engage

critically with Finnis's account of the basic goods, raising

questions such as whether knowledge is inherently valuable and

the sense in which human goods can be regarded as self-evident.

 The next two chapters, by John Haldane and Joseph Boyle, reflect

more broadly on the philosophical enterprise of reasoning about

human goods. Haldane links Finnis's methodology to

phenomenological approaches to value and reflects upon its

implications for public reason, while Boyle focuses on the role of

the 'integral directiveness of practical reason' in what Finnis and

his collaborators have termed the 'master principle of morality'

(56-7).

 The first part concludes with a rather odd chapter by Jeremy

 Waldron. The chapter raises the interesting question of what is

distinctive about natural law approaches to ethics. This question

has been widely discussed (e.g., Chartier 2009, 1-31; Murphy

2011; Crowe 2011 and 2014), but rather than engage with this

literature Waldron embarks on his own idiosyncratic reflection on

the implications of the term 'natural law'. 'Presumably', he

remarks, 'we should expect natural law to be law-like. It should

 belike law' (73).

 This suggests, for Waldron, that natural law ethics should

resemble positive law. He concludes from this that natural law

ethics should be deontic, in the sense of focusing on requirements

and prohibitions rather than reasons and goods; it should be

capable of being backed by some form of coercion; its

requirements and prohibitions should be accompanied by

ancillary principles; it should be separable from ethics and

morality; and it should gain shared recognition from those

individuals whose conduct it is supposed to regulate.

I am not aware of any actual natural law theorist who has applied

a similar set of criteria in defining natural law ethics. This does

not seem to bother Waldron, who goes on blithely to unpack his

criteria and criticise various influential natural law authors,

including Finnis, for not adequately meeting them. Why anyone

interested in natural law ethics should care about meeting these

criteria in the first place, however, is never made very clear.

 The new natural law ethics holds that right action consists in

fitting responses to the human goods. The first of these fitting

responses is participation; the second is respect (Crowe 2011,

300). An agent participates in the basic goods when she makes

one or more of them the object of her actions. An

agentrespects the goods when she refrains from acting

inconsistently with their value. It is not necessary that an agent

participates in all the goods equally at all times, but she must

always refrain from treating them as if they lacked intrinsic worth.

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 The new natural law theorists hold that it is inconsistent with

respect for the basic goods to deliberately harm one or more

goods. There is, in other words, decisive reason not to deliberately

harm any of the goods, even when doing so might forestall a

greater harm or bring about some benefit. This leads Finnis and

his collaborators to maintain the existence of absolute duties,

such as the duty not to kill an innocent person. A challenge then

arises from cases where it seems permissible to cause a harm to

 bring about some greater good.

 The new natural law response to this challenge relies heavily on

the doctrine of double effect (DDE). DDE holds that it is

sometimes permissible to cause a harm as a foreseen, but

unintended side-effect of a reasonable act, although it would not

 be permissible to intentionally cause the same harm, either as an

end in itself or as a means to an end (Crowe 2012, 166-8). It

trades, in other words, on a robust distinction between foresight

and intention.

 This framework unfortunately tends to result in unseemly

hairsplitting about intention. Finnis, for example, maintains that

a doctor who performs a craniotomy to save the mother's life does

not intend to kill the baby (480-5). Now, it is true that the doctor's

project is not to kill the child, but to preserve the mother's life.

Nonetheless, it strains credulity to say that when the doctor

crushes the child's skull, she does not intend the child's death.

Surely, if the doctor crushes the baby's skull knowing the baby

 will die, she kills the baby to save the mother.

Finnis is obliged to say the doctor did not intend the baby's death,

 because he believes there is an absolute prohibition on

intentionally killing innocent people. (The alternative would be to

treat the procedure as impermissible, but this is clearly not his

 view.) This sort of reasoning is explored in the chapters by Luke

Gormally, Anthony Kenny and Kevin Flannery, while Cristóbal

Orrego examines the overarching issue of how actions should be

understood and described. These chapters are clear and careful,

 but replete with technicalities.

Practical reasoning is sometimes difficult and technical.

Nonetheless, I cannot help thinking that all this fine stuff about

intention reveals a flaw in the new natural law framework. It is the

price Finnis and his collaborators pay for their insistence on

absolute moral duties. It's not clear the price is worth paying. Why

not say that the duty not to directly harm the basic goods is very

robust, but less than absolute? This would yield a more nuanced

approach to practical reasoning, while helping to avoid the

strained distinctions mentioned above.

 The next part of the book is about justice and rights. John

Gardner provides a typically subtle discussion of justice, arguing

that it is not the only or even the primary virtue we should

demand of social institutions, while Matthew Kramer engages

sympathetically with Finnis's retributivist theory of punishment.

Leslie Green then discusses limited government. He seeks to

clarify the various constraints that properly limit government

power, distinguishing upstream constraints that hold

independently of arguments about the justifications for state

authority from downstream constraints that reflect the limits of

those justifications.

Green views what he calls the 'limited-government tradition' (188)

as focusing on upstream constraints according to which

government should always respect a protected sphere of individual

autonomy and observe the rule of law. These upstream

constraints set rigid boundaries on state action, as opposed to

considerations such as effectiveness that depend on downstream

investigations concerning the utility of government actions.

Green criticises Finnis's view that government should never take

over the formation, direction or management of the local

institutions of

civil society. Finnis treats this as an upstream constraint on therole of the state, whereas Green argues the emphasis should fall

on practical considerations such as effectiveness and efficiency. I

am inclined to agree with Green, although I suspect he

underestimates the significance of these practical constraints for a

normative account of state institutions. He seems to think it is

pretty obvious that 'states are massively important institutions

 with urgent tasks to perform' (194). That's not something we can

take for granted if we think states should only act where they

outperform other social mechanisms.

Christopher Tollefson's chapter also engages with the issue of

limited government, asking what limits flow from the perfectionist

orientation of the new natural law view of politics. Tollefson arguesthat cooperative social groups need a coordinating authority to

function effectively (208-9). This echoes Finnis's argument

inNatural Law and Natural Rights that social coordination requires

'unanimity or authority. There are no other choices' (2011b, 232).

Law plays an essential role, on this view, by authoritatively

coordinating social action.

 The problem with this argument, as I have pointed out before

(2013), is that it overlooks the role of social conventions in solving

coordination problems. Many social coordination problems --

including extremely complex ones -- are solved by convention,

rather than authority. Language provides an obvious example. It

is arguable that many other such problems would also be solved by convention in the absence of a centralised legal authority.

 Tollefson, like Finnis, seems too ready to take the state's claims to

authority at face value.

 The next chapter by Jacqueline Tasioulas and John Tasioulas

engages Finnis's interest in Shakespeare, offering a

 jurisprudential reading ofMeasure for Measure. Patrick Lee then

examines Finnis's account of persons as subjects of rights. This is

followed by Gerard Bradley's closely argued chapter challenging

the framework of legal principles concerning the status of unborn

children that has emerged in the wake ofRoe v Wade. Bradley's

chapter is the first of three dealing with Finnis's contributions to

 bioethics. Anthony Fisher seeks to show how Finnis's approach to

 bioethics is grounded in his theory of human goods, while John

Keown focuses on Finnis's engagement with issues arising at the

 beginning and end of life.

 The book then moves to philosophy of law. Finnis famously argued

inNatural Law and Natural Rights that in order to understand law

it is necessary to enquire into its purpose: why should we have

laws and legal systems at all? An analysis of the concept of law is

therefore an evaluative exercise: it involves identifying and

deploying that perspective from which law can best be understood

in light of its practical point (2011b, ch. 1). Finnis goes on to

argue that positive law that fails in its normative purpose -- to

promote the common good -- cannot be considered law in the best

and fullest sense of the term. It is legally as well as morally

defective.

Finnis's arguments about the essential role of normative ideas in

 jurisprudence are considered in the chapters by N. E. Simmonds,

 Timothy Endicott, Timothy Macklem and Julie Dickson. Endicott,

for example, engages with Finnis's claim that the central case of

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law involves the pursuit of certain goods. He argues that, while

Finnis is correct about law's pursuit of goods, the distinctive

methods law uses to pursue these goods also entail certain ills,

such as waste, stupidity, conservatism and bureaucracy (338).

 This, for Endicott, is the irony of law.

Maris Köpcke Tinturé's chapter shifts the focus to Finnis's

accounts of legal and moral obligation. This is followed by a fairly

dense doctrinal chapter by Richard Ekins covering Finnis's work

on Commonwealth constitutional law. Neil M. Gorsuch then

returns to the role of intention in Finnis's theory from a criminal

law perspective. The final two essays consider the new natural law

theory's relationship to religion and theology. Thomas Pink

discusses Catholic doctrine on religious liberty, while Germain

Grisez argues that the normative force of natural law ethics is only

fully intelligible when placed in the context of theology.

 The volume ends with a series of responses by Finnis and a

 bibliography of his published works. Finnis's responses are

careful and thorough: they take up more than 120 pages. The

overall aim is very much to explicate and defend the positions set

out in his previous writings. There is, perhaps understandably, no

sense of urgency to break new ground. Finnis has, after all, spent

a long time working with broadly the same set of ideas and

methodologies. He is a hedgehog, not a fox. His focus is on

patiently sorting through the details.

 The collection as a whole has the same general feel of tying up

loose ends. It aims more at engaging insiders than winning

converts. This conservatism is reflected in the choice of authors.

 There is an abundance of Oxbridge dons and a plethora of

Catholics. There are very few women (only three out of thirty

contributors). I would have liked to see contributions from some of

the more innovative philosophers working within the new natural

law framework, such as Mark Murphy (2001; 2006) and Gary

Chartier (2009; 2013), or authors who have engaged with the new

natural law theory and then moved beyond it, such as Timothy

Chappell (1998; 2009).

 The collection could also have benefited from encouraging

connections with other views that share common ground with the

new natural law position, such as Martha Nussbaum's capabilities

approach (2001) or John Mikhail's work on universal moral

grammar (2011). As things stand, however, the collection is clearer

on the current state of the new natural law theory than its future.

I have argued elsewhere that the future of natural law tradition

lies in embracing its philosophical diversity (2011), but this book

does not reveal a similar vision.

In summary, then, the book contains many examples of clear,

patient and technically competent work. It covers an impressive

range of topics, reflecting Finnis's diverse interests. There are

some valuable reflections on the strengths and limitations of the

new natural law outlook. Ultimately, however, the whole thing is a

 bit too cosy for my liking.

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 necessarysubstantive moral

constraints on the content of law. Lastly, Ronald Dworkin’s theory

is a response and critique oflegal 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

 b. The Substantive Neo-Naturalism of John Finnis

c. The Procedural Naturalism of Lon L. Fuller

d. Ronald Dworkin's "Third Theory"

e. 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 moralrealism, 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

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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.

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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.

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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 necessarysubstantive 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), forexample, 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 forlaw, 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

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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 conditionsand 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 theirlegalauthority from the social criteria

of legality contained in a rule of recognition (Dworkin 1977, p. 40).

InRiggs 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, theRiggs court was not just reaching beyond

the law to extralegal standards when it considered this principle.

For theRiggs 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 theRiggs 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 theRiggs principle can

 be explained wholly in terms of its content. TheRiggs 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

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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 amoral 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 judicialdecision-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.

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