JAIPUR NATIONAL UNIVERSITY

SEEDLING SCHOOL OF LAW AND GOVERNANCE

JURISPRUDENCE II: LEGAL THEORY AND INTERPRETATION OF STATUTES

Project on

THEORIES OF LAW (JOHN LOCKE, JOHN AUSTIN, HANS KELSEN & NATURAL LAW

THEORY)

Submitted To: Prof. V.S. Mani

Submitted By: Akshar Haritwal

B.A. LL.B

VIII Semester

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John AustinJohn Austin is considered by many to be the creator of the school of analytical jurisprudence, as

well as, more specifically, the approach to law known as “legal positivism.” Austin's particular

command theory of law has been subject to pervasive criticism, but its simplicity gives it an

evocative power that continues to attract adherents.

1. Life

John Austin's life (1790–1859) was filled with disappointment and unfulfilled expectations. His

influential friends (who included Jeremy Bentham, James Mill, John Stuart Mill and Thomas

Carlyle) were impressed by his intellect and his conversation, and predicted he would go far.

However, in public dealings, Austin's nervous disposition, shaky health, tendency towards

melancholy, and perfectionism combined to end quickly careers at the Bar, in academia, and in

government service (Hamburger 1985, 1992).

Austin was born to a Suffolk merchant family, and served briefly in the military before

beginning his legal training. He was called to the Bar in 1818, but he took on few cases, and quit

the practice of law in 1825. Austin shortly thereafter obtained an appointment to the first Chair

of Jurisprudence at the recently established University of London. He prepared for his lectures

by study in Bonn, and evidence of the influence of continental legal and political ideas can be

found scattered throughout Austin's writings. Commentators have found evidence in Austin's

writings of the German Pandectist treatment of Roman Law, in particular, its approach to law as

something that is, or should be, systematic and coherent (Schwarz 1934; Stein 1988: pp. 223–

229, 238–244; Lobban 1991: pp. 223–256)

Much of whatever success Austin found during his life, and after, must be attributed to his wife

Sarah, for her tireless support, both moral and economic (during the later years of their marriage,

they lived primarily off her efforts as a translator and reviewer), and her work to publicize his

writings after his death (including the publication of a more complete set of his Lectures on

Jurisprudence) (Austin 1879). Credit should also be given to Austin's influential friends, who not

only helped him to secure many of the positions he held during his lifetime, but also gave

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important support for his writings after his death (Hamburger 1985: pp. 33, 197; Morison 1982:

p. 17; Mill 1863).

Austin's work was influential in the decades after his passing away. E. C. Clark wrote in the late

19th century that Austin's work “is undoubtedly forming a school of English jurists, possibly of

English legislators also. It is the staple of jurisprudence in all our systems of legal education.”

(Clark 1883: pp. 4–5) A similar assessment is made by H.L.A. Hart, looking back nearly a

century later: “within a few years of his death it was clear that his work had established the study

of jurisprudence in England” (Hart 1955: p. xvi). As will be discussed, Austin's influence can be

seen at a number of levels, including the general level of how legal theory, and law generally,

were taught (Stein 1988: pp. 238–244), and the use of an analytical approach in legal theory. At

such levels, Austin's impact is felt to this day. Hart could write that “Austin's influence on the

development of England of [Jurisprudence] has been greater than that of any other writer,” (Hart

1955: p. xvi) even while Austin's particular command theory of law became almost friendless,

and is today probably best known from Hart's use of it (1958, 1994) as a foil for the elaboration

of Hart's own, more nuanced approach to legal theory. In recent decades, some theorists have

revisited Austin's command theory (and other works), offering new characterizations and

defenses of his ideas (e.g., Morison 1982, Rumble 1985).

2. Analytical Jurisprudence and Legal Positivism

Early in his career, Austin came under the influence of Jeremy Bentham, and Bentham's

utilitarianism is evident (though with some differences) in the work for which Austin is best

known today. On Austin's reading of utilitarianism, Divine will is equated with Utilitarian

principles: “The commands which God has revealed we must gather from the terms wherein they

are promulg[ate]d. The command which he has not revealed, we must construe by the principle

of utility” (Austin 1873: Lecture IV, p. 160; see also Austin 1832: Lecture II, p. 41). This

particular reading of utilitarianism, however, has had little long-term influence, though it seems

to have been the part of his work that received the most attention in his own day (Rumble 1995:

p. xx). Some have also seen Austin as being one of the early advocates of “rule

utilitarianism.”(e.g., Austin 1832: Lecture II, p. 42, where Austin urges that we analyze not the

utility of particular acts, but that of “class[es] of action”). Additionally, Austin early on shared

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many of the ideas of the Benthamite philosophical radicals; he was “a strong proponent of

modern political economy, a believer in Hartleian metaphysics, and a most enthusiastic

Malthusian” (Rumble 1985: pp. 16–17). Austin was to lose most of his “radical” inclinations as

he grew older.

Austin's importance to legal theory lies elsewhere—his theorizing about law was novel at four

different levels of generality. First, he was arguably the first writer to approach the theory of law

analytically (as contrasted with approaches to law more grounded in history or sociology, or

arguments about law that were secondary to more general moral and political theories).

Analytical jurisprudence emphasizes the analysis of key concepts, including “law,” “(legal)

right,” “(legal) duty,” and “legal validity.” Though analytical jurisprudence has been challenged

by some in recent years (e.g., Leiter 2007a, 2007b), it remains the dominant approach to

discussing the nature of law. Analytical jurisprudence, an approach to theorizing about law, has

sometimes been confused with what the American legal realists (an influential group of theorists

prominent in the early decades of the 20th century) called “legal formalism”—a narrow approach

to how judges should decide cases. The American legal realists saw Austin in particular, and

analytical jurisprudence in general, as their opponents in their critical and reform-minded efforts

(e.g., Sebok 1998: pp. 65-69). In this, the realists were simply mistaken; unfortunately, it is a

mistake that can still be found in some contemporary legal commentators.

Second, Austin's work should be seen against a background where most English judges and

commentators saw common-law reasoning (the incremental creation or modification of law

through judicial resolution of particular disputes) as supreme, as declaring existing law, as

discovering the requirements of “Reason,” as the immemorial wisdom of popular “custom.”

Such (Anglo-American) theories about common law reasoning fit with a larger tradition of

theorizing about law (which had strong roots in continental European thought—e.g., the

historical jurisprudence of theorists like Karl Friedrich von Savigny (1975)): the idea that

generally law did or should reflect community mores, “spirit,” or custom. In general, one might

look at many of the theorists prior to Austin as exemplifying an approach that was more

“community-oriented”—law as arising from societal values or needs, or expressive of societal

customs or morality. By contrast, Austin's is one of the first, and one of the most distinctive,

theories that views law as being “imperium oriented”—viewing law as mostly the rules imposed

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from above from certain authorized (pedigreed) sources. More “top-down” theories of law, like

that of Austin, better fit the more centralized governments (and the modern political theories

about government) of modern times (Cotterrell 2003: pp. 21–77).

Third, within analytical jurisprudence, Austin was the first systematic exponent of a view of law

known as “legal positivism.” Most of the important theoretical work on law prior to Austin had

treated jurisprudence as though it were merely a branch of moral theory or political theory:

asking how should the state govern? (and when were governments legitimate?), and under what

circumstances did citizens have an obligation to obey the law? Austin specifically, and legal

positivism generally, offered a quite different approach to law: as an object of “scientific” study

(Austin 1879: pp. 1107–1108), dominated neither by prescription nor by moral evaluation.

Subtle jurisprudential questions aside, Austin's efforts to treat law systematically gained

popularity in the late 19th century among English lawyers who wanted to approach their

profession, and their professional training, in a more serious and rigorous manner. (Hart 1955:

pp. xvi-xviii; Cotterrell 2003: pp. 74-77; Stein 1988: pp. 231-244)

There were theorists prior to Austin who arguably offered views similar to legal positivism or

who at least foreshadowed legal positivism in some way. Among these would be Thomas

Hobbes, with his amoral view of laws as the product of Leviathan (Hobbes 1996); David Hume,

with his argument for separating “is” and “ought” (which worked as a sharp criticism for some

forms of natural law theory, which purported to derive moral truths from statements about

human nature) (Hume 1739); and Jeremy Bentham, with his attacks on judicial lawmaking and

on those, like Sir William Blackstone, who justified such lawmaking with natural-law-like

justifications (Bentham 1789).

Austin's famous formulation of what could be called the “dogma” of legal positivism is as

follows:

The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one

enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A

law, which actually exists, is a law, though we happen to dislike it, or though it vary from the

text, by which we regulate our approbation and disapprobation. (Austin 1832: Lecture V, p. 157)

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Fourth, Austin's version of legal positivism, a “command theory of law” (which will be detailed

in the next section), was also, for a time, quite influential. Austin's theory had similarities with

views developed by Jeremy Bentham, whose theory could also be characterized as a “command

theory.” Bentham, in a posthumously published work, would define law as:

…as assemblage of signs declarative of a volition conceived or adopted by the sovereign in a

state, concerning the conduct to be observed in a certain case by a certain person or class of

persons, who in the case in question are or are supposed to be subject to his power: such volition

trusting for its accomplishment to the expectation of certain events which it is intended such

declaration should upon occasion be a means of bringing to pass, and the prospect of which it is

intended should act as a motive upon those whose conduct is in question. (Bentham 1970: p. 1)

3. Austin's Views

Austin's basic approach was to ascertain what can be said generally, but still with interest, about

all laws. Austin's analysis can be seen as either a paradigm of, or a caricature of, analytical

philosophy, in that his discussions are dryly full of distinctions, but are thin in argument. The

modern reader is forced to fill in much of the meta-theoretical, justificatory work, as it cannot be

found in the text. Where Austin does articulate his methodology and objective, it is a fairly

traditional one: he “endeavored to resolve a law (taken with the largest signification which can

be given to that term properly) into the necessary and essential elements of which it is

composed” (Austin 1832: Lecture V, p. 117).

As to what is the core nature of law, Austin's answer is that laws (“properly so called”) are

commands of a sovereign. He clarifies the concept of positive law (that is, man-made law) by

analyzing the constituent concepts of his definition, and by distinguishing law from other

concepts that are similar:

“Commands” involve an expressed wish that something be done, combined with a

willingness and ability to impose “an evil” if that wish is not complied with.

Rules are general commands (applying generally to a class), as contrasted with specific or

individual commands (“drink wine today” or “John Major must drink wine”).

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Positive law consists of those commands laid down by a sovereign (or its agents), to be

contrasted to other law-givers, like God's general commands, and the general commands

of an employer to an employee.

The “sovereign” is defined as a person (or determinate body of persons) who receives

habitual obedience from the bulk of the population, but who does not habitually obey any

other (earthly) person or institution. Austin thought that all independent political

societies, by their nature, have a sovereign.

Positive law should also be contrasted with “laws by a close analogy” (which includes

positive morality, laws of honor, international law, customary law, and constitutional

law) and “laws by remote analogy” (e.g., the laws of physics).

(Austin 1832: Lecture I).

Austin also wanted to include within “the province of jurisprudence” certain “exceptions,” items

which did not fit his criteria but which should nonetheless be studied with other “laws properly

so called”: repealing laws, declarative laws, and “imperfect laws”—laws prescribing action but

without sanctions (a concept Austin ascribes to “Roman [law] jurists”) (Austin 1832: Lecture I,

p. 36).

In the criteria set out above, Austin succeeded in delimiting law and legal rules from religion,

morality, convention, and custom. However, also excluded from “the province of jurisprudence”

were customary law (except to the extent that the sovereign had, directly or indirectly, adopted

such customs as law), public international law, and parts of constitutional law. (These exclusions

alone would make Austin's theory problematic for most modern readers.)

Within Austin's approach, whether something is or is not “law” depends on which people have

done what: the question turns on an empirical investigation, and it is a matter mostly of power,

not of morality. Of course, Austin is not arguing that law should not be moral, nor is he implying

that it rarely is. Austin is not playing the nihilist or the skeptic. He is merely pointing out that

there is much that is law that is not moral, and what makes something law does nothing to

guarantee its moral value. “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”

(Austin 1832: Lecture V, p. 158).

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4. Criticisms

As many readers come to Austin's theory mostly through its criticism by other writers

(prominently, that of H.L.A. Hart), the weaknesses of the theory are almost better known than

the theory itself:

First, in many societies, it is hard to identify a “sovereign” in Austin's sense of the word (a

difficulty Austin himself experienced, when he was forced to describe the British “sovereign”

awkwardly as the combination of the King, the House of Lords, and all the electors of the House

of Commons). Additionally, a focus on a “sovereign” makes it difficult to explain the continuity

of legal systems: a new ruler will not come in with the kind of “habit of obedience” that Austin

sets as a criterion for a system's rule-maker.

A few responses are available to those who would defend Austin. First, some commentators have

argued that Austin is here misunderstood, in that he always meant “by the sovereign the office or

institution which embodies supreme authority; never the individuals who happen to hold that

office or embody that institution at any given time” (Cotterrell 2003: p. 63, footnote omitted);

there are certainly parts of Austin's lectures that support this reading (e.g., Austin 1832: Lecture

V, pp. 128–29; Lecture VI, p. 218).

Secondly, one could argue (see Harris 1977) that the sovereign is best understood as a

constructive metaphor: that law should be viewed as if it reflected the view of a single will (a

similar view, that law should be interpreted as if it derived from a single will, can be found in

Ronald Dworkin's work (1986: pp. 176–190)).

Thirdly, one could argue that Austin's reference to a sovereign whom others are in the habit of

obeying but who is not in the habit of obeying anyone else, captures what a “realist” or “cynic”

would call a basic fact of political life. There is, the claim goes, entities or factions in society that

are not effectively constrained, or could act in an unconstrained way if they so chose. For one

type of example, one could point out that if there was a sufficiently large and persistent majority

among the United States electorate, nothing could contain them: they could elect Presidents and

legislators who would amend the Constitution and, through those same officials, appoint judges

who would interpret the (revised or original) Constitution in a way amenable to their interests. A

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different sort of example (and some would say that there are recent real-life examples of this

type) would be a President who ignored the constraints of statutory law, constitutional law, and

international treaty commitments, while the public and other officials lacked the will or the

means to hold that President to the legal norms that purported to constrain his or her actions.

As regards Austin's “command” model, it seems to fit some aspects of law poorly (e.g., rules

which grant powers to officials and to private citizens—of the latter, the rules for making wills,

trusts, and contracts are examples), while excluding other matters (e.g., international law) which

we are not inclined to exclude from the category “law.”

Finally, one might note that the constitutive rules that determine who the legal officials are and

what procedures must be followed in creating new legal rules, “are not commands habitually

obeyed, nor can they be expressed as habits of obedience to persons” (Hart 1958: p. 603).

When H.L.A. Hart revived legal positivism in the middle of the 20 th century (Hart 1958, 1994),

he did it by criticizing and building on Austin's theory: for example, Hart's theory did not try to

reduce all legal rules to one kind of rule, but emphasized the varying types and functions of legal

rules; and Hart's theory, grounded partly on the distinction between “obligation” and “being

obliged,” was built around the fact that some participants within legal systems “accepted” the

legal rules as reasons for action, above and beyond the fear of sanctions. Hart's “hermeneutic”

approach, building on the “internal point of view” of participants who accepted the legal system,

diverged sharply from Austin's approach to law.

5. A Revisionist View?

Some modern commentators appreciate in Austin elements that were probably not foremost in

his mind (or that of his contemporary readers). For example, one occasionally sees Austin

portrayed as the first “realist”: in contrast both to the theorists that came before Austin and to

some modern writers on law, Austin is seen as having a keener sense of the connection of law

and power, and the importance of keeping that connection at the forefront of analysis (cf.

Cotterrell 2003: pp. 49–77). One commentator wrote:

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Austin's theory is not a theory of the Rule of Law: of government subject to law. It is a theory of

the ‘rule of men’: of government using law as an instrument of power. Such a view may be

considered realistic or merely cynical. But it is, in its broad outlines, essentially coherent.

(Cotterrell 2003: p. 70)

When circumstances seem to warrant a more critical, skeptical or cynical approach to law and

government, Austin's equation of law and force will be attractive—however distant such a

reading may be from Austin's own liberal-utilitarian views at the time of his writing, or his more

conservative political views later in his life (Hamburger, 1985).

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The Pure Theory of LawThe idea of a Pure Theory of Law was propounded by the formidable Austrian jurist and

philosopher Hans Kelsen (1881–1973). (See bibliographical note) Kelsen began his long career

as a legal theorist at the beginning of the 20th century. The traditional legal philosophies at the

time, were, Kelsen claimed, hopelessly contaminated with political ideology and moralizing on

the one hand, or with attempts to reduce the law to natural or social sciences, on the other hand.

He found both of these reductionist endeavors seriously flawed. Instead, Kelsen suggested a

‘pure’ theory of law which would avoid reductionism of any kind. The jurisprudence Kelsen

propounded “characterizes itself as a ‘pure’ theory of law because it aims at cognition focused on

the law alone” and this purity serves as its “basic methodological principle” (PT1, 7).

1. The Basic Norm

The main challenge for a theory of law, as Kelsen saw it, is to provide an explanation of legality

and the normativity of law, without an attempt to reduce jurisprudence, or “legal science”, to

other domains. The law, Kelsen maintained, is basically a scheme of interpretation. Its reality, or

objectivity, resides in the sphere of meaning; we attach a legal-normative meaning to certain

actions and events in the world (PT1, 10). Suppose, for example, that a new law is enacted by the

California legislature. How is it done? Presumably, some people gather in a hall, debate the

issue, eventually raise their hands in response to the question of whether they approve a certain

document or not, count the number of people who say “yes”, and then promulgate a string of

words, etc. Now, of course, the actions and events described here are not the law. To say that the

description is of the enactment of a new law is to interpret these actions and events in a certain

way. But then, of course, the question is why certain acts or events have such a legal meaning

and others don't?

Kelsen's answer to this question is surprisingly simple: an act or an event gains its legal-

normative meaning by another legal norm that confers this normative meaning on it. An act can

create or modify the law if it is created in accordance with another, “higher” legal norm that

authorizes its creation in that way. And the “higher” legal norm, in turn, is legally valid if and

only if it has been created in accord with yet another, “higher” norm that authorizes its enactment

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in that way. In other words: it is the law in the United States that the California legislature can

enact certain types of laws. But what makes this the law? The California Constitution confers

this power on the state legislature to enact laws within certain prescribed boundaries of content

and jurisdiction. But then what makes the California Constitution legally valid? The answer is

that the legal validity of the Constitution of California derives from an authorization granted by

the US Constitution. What makes the US Constitution legally valid? Surely, not the fact that the

US Constitution proclaims itself to be “the supreme law of the land”. Any document can say that,

but only the particular document of the US Constitution is actually the supreme law in the United

States.

The problem is that here the chain of authorization comes to an end: There isn't a higher legal

norm that authorizes the enactment of the (original) US Constitution. At this point, Kelsen

famously argued, one must presuppose the legal validity of the Constitution. At some stage, in

every legal system, we get to an authorizing norm that has not been authorized by any other legal

norm, and thus it has to be presupposed to be legally valid. The normative content of this

presupposition is what Kelsen has called the basic norm. The basic norm is the content of the

presupposition of the legal validity of the (first, historical) constitution of the relevant legal

system (GT, 110–111).

As Kelsen saw it, there is simply no alternative. More precisely, any alternative would violate

David Hume's injunction against deriving an “ought” from an “is”. Hume famously argued that

any practical argument that concludes with some prescriptive statement, a statement of the kind

that one ought to do this or that, would have to contain at least one prescriptive statement in its

premises. If all the premises of an argument are descriptive, telling us what this or that is the

case, then there is no prescriptive conclusion that can logically follow. Kelsen took this argument

very seriously. He observed that the actions and events that constitute, say, the enactment of a

law, are all within the sphere of what “is” the case, they are all within the sphere of actions and

events that take place in the world. The law, or legal norms, are within the sphere of “ought”,

they are norms that purport to guide conduct. Thus, to get an “ought” type of conclusion from a

set of “is” premises, one must point to some “ought” premise in the background, an “ought” that

confers the normative meaning on the relevant type of “is”. Since the actual, legal, chain of

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validity comes to an end, we inevitably reach a point where the “ought” has to be presupposed,

and this is the presupposition of the basic norm.

The idea of the basic norm serves three theoretical functions in Kelsen's theory of law: The first

is to ground a non-reductive explanation of legal validity. The second function is to ground a

non-reductive explanation of the normativity of law. The third function is to explain the

systematic nature of legal norms. These three issues are not un-related.

Kelsen rightly noticed that legal norms necessarily come in systems. There are no free-floating

legal norms. If, for example, somebody suggests that “the law requires a will to be attested by

two witnesses”, one should always wonder which legal system is talked about; is it US law,

Canadian law, German law, or the law in some other legal system? Furthermore, legal systems

are themselves organized in a hierarchical structure, manifesting a great deal of complexity but

also a certain systematic unity. We talk about Canadian law, or German law, etc., not only

because these are separate countries in which there is law. They are also separate legal systems,

manifesting a certain cohesion and unity. This systematic unity Kelsen meant to capture by the

following two postulates:

1. Every two norms that ultimately derive their validity from one basic norm belong to the

same legal system.

2. All legal norms of a given legal system ultimately derive their validity from one basic

norm.

Whether these two postulates are actually true is a contentious issue. Joseph Raz argued that they

are both inaccurate, at best. Two norms can derive their validity from the same basic norm, but

fail to belong to the same system as, for example, in case of an orderly secession whereby a new

legal system is created by the legal authorization of another. Nor is it necessarily true that all the

legally valid norms of a given system derive their validity from the same basic norm (Raz 1979,

127–129).

Be this as it may, even if Kelsen erred about the details of the unity of legal systems, his main

insight remains true, and quite important. It is true that law is essentially systematic, and it is also

true that the idea of legal validity and law's systematic nature are very closely linked. Norms are

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legally valid within a given system, they have to form part of a system of norms that is in force

in a given place and time.

2. Relativism and Reduction

Common wisdom has it that Kelsen's argument for the presupposition of the basic norm takes the

form of a Kantian transcendental argument. The structure is as follows:

1. P is possible only if Q

2. P is possible (or, possibly P)

3. Therefore, Q.

In Kelsen's argument, P stands for the fact that legal norms are “ought” statements , and Q is the

presupposition of the basic norm. In other words, the necessary presupposition of the basic norm

is derived from the possibility conditions for ascribing legal significance to actions and events. In

order to interpret an action as one of creating or modifying the law, it is necessary to show that

the relevant legal significance of the act/event is conferred on it by some other legal norm. At

some point, as we have noted, we necessarily run out of legal norms that confer the relevant

validity on law creating acts, and at that point the legal validity has to be presupposed. The

content of this presupposition is the basic norm.

It would be a mistake, however, to look for an explanation of Kelsen's argument in the logic of

Kant's transcendental argument. (Kelsen himself seems to have changed his views about this

over the years; he may have started with a kind of neo-Kantian perspective one can discern in

PT1, and gradually shifted to a Humean version of his main argument, which is quite evident in

GT.) Kant employed a transcendental argument to establish the necessary presuppositions of

some categories and modes of perception that are essential for rational cognition, or so he

thought. They form deep, universal, and necessary features of human cognition. Suffice it to

recall that it was Hume's skepticism about knowledge that Kant strove to answer by his

transcendental argument. Kelsen, however, remains much closer to Hume's skeptical views than

to Kant's rationalism. In particular, Kelsen was very skeptical of any objective grounding of

morality, Kant's moral theory included. Kelsen's view of morality was relativist all the way

down. (More on this, below). Second, and not unrelated, as we shall see, Kelsen has explicitly

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rejected the idea that the basic norm (in law, or of any other normative domain) is something like

a necessary feature or category of human cognition. The presupposition of a basic norm is

optional. One does not have to accept the normativity of law; anarchism, as a rejection of law's

normative validity is certainly an option, Kelsen maintained. The basic norm is presupposed only

by those who accept the “ought”, that is, the normative validity, of the law. But one is not

rationally compelled to have this attitude:

The Pure Theory describes the positive law as an objectively valid order and states that this

interpretation is possible only under the condition that a basic norm is presupposed…. The Pure

Theory, thereby characterizes this interpretation as possible, not necessary, and presents the

objective validity of positive law only as conditional—namely conditioned by the presupposed

basic norm. (PT2, 217–218)

A comparison to religion, that Kelsen himself offered, might be helpful here. The normative

structure of religion is very similar to that of law. It has the same logic: religious beliefs about

what one ought to do ultimately derive from one's beliefs about God's commands. God's

commands, however, would only have normative validity for those who presuppose the basic

norm of their respective religion, namely, that one ought to obey God's commands. Thus the

normativity of religion, like that of the law, rests on the presupposition of its basic norm. But in

both cases, as, in fact, with any other normative system, the presupposition of the basic norm is

logically required only of those who regard the relevant norms as reasons for their actions. Thus,

whether you actually presuppose the relevant basic norm is a matter of choice, it is an ideological

option, as it were, not something that is dictated by Reason. Similarly, the normativity of law,

presupposed by its basic norm, is optional: “An anarchist, for instance, who denied the validity

of the hypothetical basic norm of positive law…. will view its positive regulation of human

relationships… as mere power relations” (GT, 413).

Relativism, however, comes with a price. Consider this question: What is the content of the basic

norm that one needs to presuppose in order to render positive law intelligible as a normative

legal order? The simple answer is that what one presupposes here is precisely the normative

validity of positive law, namely, the law that is actually practiced by a certain population. The

validity of the basic norm, as we noted briefly earlier, is conditional on its “efficacy”. The

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content of the basic norm of any given legal system is determined by the actual practices that

prevail in the relevant community. As Kelsen himself repeatedly argued, a successful revolution

brings about a radical change in the content of the basic norm. Suppose, for example, that in a

given legal system the basic norm is that the constitution enacted by Rex One is binding. At a

certain point, a coup d'etat takes place and a republican government is successfully installed. At

this point, Kelsen admits, ‘one presupposes a new basic norm, no longer the basic norm

delegating law making authority to the monarch, but a basic norm delegating authority to the

revolutionary government’ (PT1, 59).

Has Kelsen just violated his own adherence to Hume's injunction against deriving “ought” from

an “is” here? One gets the clear impression that Kelsen was aware of a serious difficulty in his

position. In both editions of the Pure Theory of Law, Kelsen toys with the idea that perhaps

changes in the basic norms of municipal legal systems legally derive from the basic norm of

public international law. It is a basic principle of international law that state sovereignty is

determined by actual control over a territory/population (PT1 61–62, though in PT2, 214–215,

the idea is presented with greater hesitation). But this led Kelsen to the rather uncomfortable

conclusion that there is only one basic norm in the entire world, namely, the basic norm of public

international law. Be this as it may, the main worry lies elsewhere. The worry stems from the

fact that it is very difficult, if not impossible, to maintain both a profound relativist and an anti-

reductionist position with respect to a given normative domain. If you hold the view that the

validity of a type of norms is entirely relative to a certain vantage point—in other words, if what

is involved here is only the actual conduct, beliefs/presuppositions and attitudes of people—it

becomes very difficult to detach the explanation of that normative validity from the facts that

constitute the relevant point of view (namely, the facts about people's actions, beliefs, attitudes,

etc). This is basically what was meant earlier by the comment that Kelsen had no option but to

admit that the validity of the basic norm is conditional on its efficacy. The normative relativism

which is inherent in Kelsen's conception forces him to ground the content of the basic norm in

the social facts that constitute its content, namely, the facts about actions, beliefs, and attitudes

actually entertained by the population in question. And this makes it very questionable that

reductionism can be avoided. In fact, what Kelsen really offered us here is an invitation to

provide a reductive explanation of the concept of legal validity in terms of some set of social

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facts, the facts that constitute the content of any given basic norm. (Which is precisely the kind

of reduction H.L.A. Hart later offered in his account of the Rules of Recognition as social rules

[see Hart 1961, at p. 105, where Hart alludes to the difference between his conception of the

rules of recognition and Kelsen's idea of the basic norm.])

3. The Normativity of Law

Let us now see how Kelsen thought that the basic norm helps to explain the sense in which law is

a normative domain and what this normativity consists in. The first and crucial point to realize is

that for Kelsen the idea of normativity is tantamount to a genuine “ought”, as it were; it is a

justified demand on practical deliberation. A certain content is regarded as normative by an agent

if and only if the agent regards that content as a valid reason for action. As Joseph Raz noticed,

Kelsen agrees with the Natural Law tradition in this particular respect; both assume that the

normativity of law can only be explained as one would explain the normativity of morality, or

religion for that matter, namely, in terms of valid reasons for action (Raz 1979, 134–137). But

then, the problem for Kelsen is how to explain the difference between the normativity of law and

that of morality; if legal “ought” is a genuine “ought”, what makes a legal obligation distinct

from a moral one? Kelsen's answer is that the relevant “ought” is always relative to a given point

of view. Each and every type of “ought”, be it religious, moral or legal, must presuppose a

certain point of view, a point of view which is constituted by the basic norm of the relevant

normative system.

In other words, Kelsen's conception of legal normativity turns out to be a form of Natural Law

completely relativized to a certain point of view. However, in Kelsen's theory the relevant point

of view is distinctly a legal one, not some general conception of morality or Reason. That these

two basic norms, or points of view, can come apart, is nicely demonstrated by Kelsen's comment

that “even an anarchist, if he were a professor of law, could describe positive law as a system of

valid norms, without having to approve of this law” (PT2 218n). The anarchist does not endorse

the legal point of view as one that reflects her own views about what is right and wrong.

Anarchism is understood here precisely as a rejection of the normative validity of law; however,

even the anarchist can make an argument about what the law in this or that context requires; and

when she makes such an argument, she must presuppose the legal point of view, she must argue

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as if she endorses the basic norm of the relevant legal system. Joseph Raz has called these kinds

of statements “detached normative statements”; the anarchist argues as if she endorses the basic

norm, without actually endorsing it. Another example that Raz gave is this: suppose that at

Catholic priest is an expert in Jewish Law; the priest can make various interpretative arguments

about what Jewish law really requires in this or that context. In such a case, the priest must argue

as if he endorses the basic norm of Jewish Law, but of course, being a Catholic, he does not

really endorse it, it does not reflect his own views about what is right and wrong (Raz 1979, 153–

157).

So here is what emerges so far: the concept of normativity, the sense in which normative content

is related to reasons for action, is the same across all normative domains. To regard something as

normative is to regard it as justified, as a warranted requirement on practical deliberation.

However, the difference resides in the difference in points of view. Each basic norm determines,

as it were, a certain point of view. So it turns out that normativity (contra Kant) always consists

of conditional imperatives: if, and only if, one endorses a certain normative point of view,

determined by its basic norm, then the norms that follow from it are reason giving, so to speak.

This enables Kelsen to maintain the same understanding of the nature of normativity as Natural

Law's conception, namely, normativity qua reasons for action, without having to conflate the

normativity of morality with that of law. In other words, the difference between legal normativity

and, say, moral normativity, is not a difference in normativity (viz, about the nature of

normativity, per se), but only in the relevant vantage point that is determined by their different

basic norms. What makes legal normativity unique is the uniqueness of its point of view, the

legal point of view, as it were.

We can set aside the difficulties that such a view raises with respect to morality. Obviously,

many philosophers would reject Kelsen's view that moral reasons for action only apply to those

who choose to endorse morality's basic norm (whatever it may be). Even if Kelsen is quite wrong

about this conditional nature of moral imperatives, he may be right about the law. What remains

questionable, however, is whether Kelsen succeeds in providing a non-reductive explanation of

legal normativity, given the fact that his account of legal validity turned out to be reductive after

all. The trouble here is not simply the relativity to a point of view; the trouble resides in Kelsen's

failure to ground the choice of the relevant point of view in anything like Reason or reasons of

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any kind. By deliberately avoiding any explanation of what it is that might ground an agent's

choice of endorsing the legal point of view, or any given basic norm, Kelsen left the most

pressing questions about the normativity of law unanswered. Instead of providing an explanation

of what makes the presupposition of the legal point of view rational, or what makes it rational to

regard the requirements of law as binding requirements, Kelsen invites us to stop asking.

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Locke's Political PhilosophyJohn Locke (1632–1704) is among the most influential political philosophers of the modern

period. In the Two Treatises of Government, he defended the claim that men are by nature free

and equal against claims that God had made all people naturally subject to a monarch. He argued

that people have rights, such as the right to life, liberty, and property that have a foundation

independent of the laws of any particular society. Locke used the claim that men are naturally

free and equal as part of the justification for understanding legitimate political government as the

result of a social contract where people in the state of nature conditionally transfer some of their

rights to the government in order to better ensure the stable, comfortable enjoyment of their

lives, liberty, and property. Since governments exist by the consent of the people in order to

protect the rights of the people and promote the public good, governments that fail to do so can

be resisted and replaced with new governments. Locke is thus also important for his defense of

the right of revolution. Locke also defends the principle of majority rule and the separation of

legislative and executive powers. In the Letter Concerning Toleration, Locke denied that

coercion should be used to bring people to (what the ruler believes is) the true religion and also

denied that churches should have any coercive power over their members. Locke elaborated on

these themes in his later political writings, such as the Second Letter on Toleration and Third

Letter on Toleration.

1. The Law of Nature

Perhaps the most central concept in Locke's political philosophy is his theory of natural law and

natural rights. The natural law concept existed long before Locke as a way of expressing the idea

that there were certain moral truths that applied to all people, regardless of the particular place

where they lived or the agreements they had made. The most important early contrast was

between laws that were by nature, and thus generally applicable, and those that were

conventional and operated only in those places where the particular convention had been

established. This distinction is sometimes formulated as the difference between natural law and

positive law.

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Natural law is also distinct from divine law in that the latter, in the Christian tradition, normally

referred to those laws that God had directly revealed through prophets and other inspired writers.

Natural law can be discovered by reason alone and applies to all people, while divine law can be

discovered only through God's special revelation and applies only to those to whom it is revealed

and who God specifically indicates are to be bound. Thus some seventeenth-century

commentators, Locke included, held that not all of the 10 commandments, much less the rest of

the Old Testament law, were binding on all people. The 10 commandments begin “Hear O

Israel” and thus are only binding on the people to whom they were addressed (Works 6:37). As

we will see below, even though Locke thought natural law could be known apart from special

revelation, he saw no contradiction in God playing a part in the argument, so long as the relevant

aspects of God's character could be discovered by reason alone. In Locke's theory, divine law

and natural law are consistent and can overlap in content, but they are not coextensive. Thus

there is no problem for Locke if the Bible commands a moral code that is stricter than the one

that can be derived from natural law, but there is a real problem if the Bible teaches what is

contrary to natural law. In practice, Locke avoided this problem because consistency with natural

law was one of the criteria he used when deciding the proper interpretation of Biblical passages.

In the century before Locke, the language of natural rights also gained prominence through the

writings of such thinkers as Grotius, Hobbes, and Pufendorf. Whereas natural law emphasized

duties, natural rights normally emphasized privileges or claims to which an individual was

entitled. There is considerable disagreement as to how these factors are to be understood in

relation to each other in Locke's theory. Leo Strauss, and many of his followers, take rights to be

paramount, going so far as to portray Locke's position as essentially similar to that of Hobbes.

They point out that Locke defended a hedonist theory of human motivation (Essay 2.20) and

claim that he must agree with Hobbes about the essentially self-interested nature of human

beings. Locke, they claim, only recognizes natural law obligations in those situations where our

own preservation is not in conflict, further emphasizing that our right to preserve ourselves

trumps any duties we may have.

On the other end of the spectrum, more scholars have adopted the view of Dunn, Tully, and

Ashcraft that it is natural law, not natural rights, that is primary. They hold that when Locke

emphasized the right to life, liberty, and property he was primarily making a point about the

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duties we have toward other people: duties not to kill, enslave, or steal. Most scholars also argue

that Locke recognized a general duty to assist with the preservation of mankind, including a duty

of charity to those who have no other way to procure their subsistence (Two Treatises 1.42).

These scholars regard duties as primary in Locke because rights exist to ensure that we are able

to fulfill our duties. Simmons takes a position similar to the latter group, but claims that rights

are not just the flip side of duties in Locke, nor merely a means to performing our duties. Instead,

rights and duties are equally fundamental because Locke believes in a “robust zone of

indifference” in which rights protect our ability to make choices. While these choices cannot

violate natural law, they are not a mere means to fulfilling natural law either.

Another point of contestation has to do with the extent to which Locke thought natural law

could, in fact, be known by reason. Both Strauss and Peter Laslett, though very different in their

interpretations of Locke generally, see Locke's theory of natural law as filled with contradictions.

In the Essay Concerning Human Understanding, Locke defends a theory of moral knowledge

that negates the possibility of innate ideas (Essay Book 1) and claims that morality is capable of

demonstration in the same way that Mathematics is (Essay 3.11.16, 4.3.18–20). Yet nowhere in

any of his works does Locke make a full deduction of natural law from first premises. More than

that, Locke at times seems to appeal to innate ideas in the Second Treatise (2.11), and in The

Reasonableness of Christianity (Works 7:139) he admits that no one has ever worked out all of

natural law from reason alone. Strauss infers from this that the contradictions exist to show the

attentive reader that Locke does not really believe in natural law at all. Laslett, more

conservatively, simply says that Locke the philosopher and Locke the political writer should be

kept very separate.

More recent scholarship has tended to reject this position. Yolton, Colman, Ashcraft, Grant,

Simmons, Tuckness and others all argue that there is nothing strictly inconsistent in Locke's

admission in The Reasonableness of Christianity. That no one has deduced all of natural law

from first principles does not mean that none of it has been deduced. The supposedly

contradictory passages in the Two Treatises are far from decisive. While it is true that Locke

does not provide a deduction in the Essay, it is not clear that he was trying to. Section 4.10.1–19

of that work seems more concerned to show how reasoning with moral terms is possible, not to

actually provide a full account of natural law. Nonetheless, it must be admitted that Locke did

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not treat the topic of natural law as systematically as one might like. Attempts to work out his

theory in more detail with respect to its ground and its content must try to reconstruct it from

scattered passages in many different texts.

To understand Locke's position on the ground of natural law it must be situated within a larger

debate in natural law theory that predates Locke, the so-called “voluntarism-intellectualism,” or

“voluntarist-rationalist” debate. At its simplest, the voluntarist declares that right and wrong are

determined by God's will and that we are obliged to obey the will of God simply because it is the

will of God. Unless these positions are maintained, the voluntarist argues, God becomes

superfluous to morality since both the content and the binding force of morality can be explained

without reference to God. The intellectualist replies that this understanding makes morality

arbitrary and fails to explain why we have an obligation to obey God.

With respect to the grounds and content of natural law, Locke is not completely clear. On the one

hand, there are many instances where he makes statements that sound voluntarist to the effect

that law requires a law giver with authority (Essay 1.3.6, 4.10.7). Locke also repeatedly insists in

the Essays on the Law of Nature that created beings have an obligation to obey their creator

(ELN 6). On the other hand there are statements that seem to imply an external moral standard to

which God must conform (Two Treatises 2.195; Works 7:6). Locke clearly wants to avoid the

implication that the content of natural law is arbitrary. Several solutions have been proposed.

One solution suggested by Herzog makes Locke an intellectualist by grounding our obligation to

obey God on a prior duty of gratitude that exists independent of God. A second option, suggested

by Simmons, is simply to take Locke as a voluntarist since that is where the preponderance of his

statements point. A third option, suggested by Tuckness (and implied by Grant), is to treat the

question of voluntarism as having two different parts, grounds and content. On this view, Locke

was indeed a voluntarist with respect to the question “why should we obey the law of nature?”

Locke thought that reason, apart from the will of a superior, could only be advisory. With respect

to content, divine reason and human reason must be sufficiently analogous that human beings

can reason about what God likely wills. Locke takes it for granted that since God created us with

reason in order to follow God's will, human reason and divine reason are sufficiently similar that

natural law will not seem arbitrary to us.

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With respect to the specific content of natural law, Locke never provides a comprehensive

statement of what it requires. In the Two Treatises, Locke frequently states that the fundamental

law of nature is that as much as possible mankind is to be preserved. Simmons argues that in

Two Treatises 2.6 Locke presents 1) a duty to preserve one's self, 2) a duty to preserve others

when self-preservation does not conflict, 3) a duty not to take away the life of another, and 4) a

duty not to act in a way that “tends to destroy” others. Libertarian interpreters of Locke tend to

downplay duties of type 1 and 2. Locke presents a more extensive list in his earlier, and

unpublished in his lifetime, Essays on the Law of Nature. Interestingly, Locke here includes

praise and honor of the deity as required by natural law as well as what we might call good

character qualities.

2. State of Nature

Locke's concept of the state of nature has been interpreted by commentators in a variety of ways.

At first glance it seems quite simple. Locke writes “want [lack] of a common judge, with

authority, puts all persons in a state of nature” and again, “Men living according to reason,

without a common superior on earth, to judge between them, is properly the state of nature.”

(Two Treatises 2.19) Many commentators have taken this as Locke's definition, concluding that

the state of nature exists wherever there is no legitimate political authority able to judge disputes

and where people live according to the law of reason. On this account the state of nature is

distinct from political society, where a legitimate government exists, and from a state of war

where men fail to abide by the law of reason.

Simmons presents an important challenge to this view. Simmons points out that the above

statement is worded as a sufficient rather than necessary condition. Two individuals might be

able, in the state of nature, to authorize a third to settle disputes between them without leaving

the state of nature, since the third party would not have, for example, the power to legislate for

the public good. Simmons also claims that other interpretations often fail to account for the fact

that there are some people who live in states with legitimate governments who are nonetheless in

the state of nature: visiting aliens (2.9), children below the age of majority (2.15, 118), and those

with a “defect” of reason (2.60). He claims that the state of nature is a relational concept

describing a particular set of moral relations that exist between particular people, rather than a

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description of a particular geographical territory. The state of nature is just the way of describing

the moral rights and responsibilities that exist between people who have not consented to the

adjudication of their disputes by the same legitimate government. The groups just mentioned

either have not or cannot give consent, so they remain in the state of nature. Thus A may be in

the state of nature with respect to B, but not with C.

Simmons' account stands in sharp contrast to that of Strauss. According to Strauss, Locke

presents the state of nature as a factual description of what the earliest society is like, an account

that when read closely reveals Locke's departure from Christian teachings. State of nature

theories, he and his followers argue, are contrary to the Biblical account in Genesis and evidence

that Locke's teaching is similar to that of Hobbes. As noted above, on the Straussian account

Locke's apparently Christian statements are only a façade designed to conceal his essentially

anti-Christian views. According to Simmons, since the state of nature is a moral account, it is

compatible with a wide variety of social accounts without contradiction. If we know only that a

group of people are in a state of nature, we know only the rights and responsibilities they have

toward one another; we know nothing about whether they are rich or poor, peaceful or warlike.

Locke's theory of the state of nature will thus be tied closely to his theory of natural law, since

the latter defines the rights of persons and their status as free and equal persons. The stronger the

grounds for accepting Locke's characterization of people as free, equal, and independent, the

more helpful the state of nature becomes as a device for representing people. Still, it is important

to remember that none of these interpretations claims that Locke's state of nature is only a

thought experiment, in the way Kant and Rawls are normally thought to use the concept. Locke

did not respond to the argument “where have there ever been people in such a state” by saying it

did not matter since it was only a thought experiment. Instead, he argued that there are and have

been people in the state of nature. (Two Treatises 2.14) It seems important to him that at least

some governments have actually been formed in the way he suggests. How much it matters

whether they have been or not will be discussed below under the topic of consent, since the

central question is whether a good government can be legitimate even if it does not have the

actual consent of the people who live under it; hypothetical contract and actual contract theories

will tend to answer this question differently.

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3. Property

Locke's treatment of property is generally thought to be among his most important contributions

in political thought, but it is also one of the aspects of his thought that has been most heavily

criticized. There are important debates over what exactly Locke was trying to accomplish with

his theory. One interpretation, advanced by C.B. Macpherson, sees Locke as a defender of

unrestricted capitalist accumulation. On Macpherson's interpretation, Locke is thought to have

set three restrictions on the accumulation of property in the state of nature: 1) one may only

appropriate as much as one can use before it spoils (Two Treatises 2.31), 2) one must leave

“enough and as good” for others (the sufficiency restriction) (2.27), and 3) one may (supposedly)

only appropriate property through one's own labor (2.27). Macpherson claims that as the

argument progresses, each of these restrictions is transcended. The spoilage restriction ceases to

be a meaningful restriction with the invention of money because value can be stored in a medium

that does not decay (2.46–47). The sufficiency restriction is transcended because the creation of

private property so increases productivity that even those who no longer have the opportunity to

acquire land will have more opportunity to acquire what is necessary for life (2.37). According to

Macpherson's view, the “enough and as good” requirement is itself merely a derivative of a prior

principle guaranteeing the opportunity to acquire, through labor, the necessities of life. The third

restriction, Macpherson argues, was not one Locke actually held at all. Though Locke appears to

suggest that one can only have property in what one has personally labored on when he makes

labor the source of property rights, Locke clearly recognized that even in the state of nature, “the

Turfs my Servant has cut” (2.28) can become my property. Locke, according to Macpherson,

thus clearly recognized that labor can be alienated. As one would guess, Macpherson is critical

of the “possessive individualism” that Locke's theory of property represents. He argues that its

coherence depends upon the assumption of differential rationality between capitalists and wage-

laborers and on the division of society into distinct classes. Because Locke was bound by these

constraints, we are to understand him as including only property owners as voting members of

society.

Tully also argued for a fundamental reinterpretation of Locke's theory. Previous accounts had

focused on the claim that since persons own their own labor, when they mix their labor with that

which is unowned it becomes their property. Robert Nozick criticized this argument with his

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famous example of mixing tomato juice one rightfully owns with the sea. When we mix what we

own with what we do not, why should we think we gain property instead of losing it? On Tully's

account, focus on the mixing metaphor misses Locke's emphasis on what he calls the

“workmanship model.” Locke believed that makers have property rights with respect to what

they make just as God has property rights with respect to human beings because he is their

maker. Human beings are created in the image of God and share with God, though to a much

lesser extent, the ability to shape and mold the physical environment in accordance with a

rational pattern or plan. Waldron has criticized this interpretation on the grounds that it would

make the rights of human makers absolute in the same way that God's right over his creation is

absolute. Sreenivasan has defended Tully's argument against Waldron's response by claiming a

distinction between creating and making. Only creating generates an absolute property right, and

only God can create, but making is analogous to creating and creates an analogous, though

weaker, right.

Another controversial aspect of Tully's interpretation of Locke is his interpretation of the

sufficiency condition and its implications. On his analysis, the sufficiency argument is crucial for

Locke's argument to be plausible. Since Locke begins with the assumption that the world is

owned by all, individual property is only justified if it can be shown that no one is made worse

off by the appropriation. In conditions where the good taken is not scarce, where there is much

water or land available, an individual's taking some portion of it does no harm to others. Where

this condition is not met, those who are denied access to the good do have a legitimate objection

to appropriation. According to Tully, Locke realized that as soon as land became scarce,

previous rights acquired by labor no longer held since “enough and as good” was no longer

available for others. Once land became scarce, property could only be legitimated by the creation

of political society.

Waldron claims that, contrary to Macpherson, Tully, and others, Locke did not recognize a

sufficiency condition at all. He notes that, strictly speaking, Locke makes sufficiency a sufficient

rather than necessary condition when he says that labor generates a title to property “at least

where there is enough, and as good left in common for others” (Two Treatises 2.27). Waldron

takes Locke to be making a descriptive statement, not a normative one, about the condition that

happens to have initially existed. Waldron also argues that in the text “enough and as good” is

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not presented as a restriction and is not grouped with other restrictions. Waldron thinks that the

condition would lead Locke to the absurd conclusion that in circumstances of scarcity everyone

must starve to death since no one would be able to obtain universal consent and any

appropriation would make others worse off.

One of the strongest defenses of Tully's position is presented by Sreenivasan. He argues that

Locke's repetitious use of “enough and as good” indicates that the phrase is doing some real

work in the argument. In particular, it is the only way Locke can be thought to have provided

some solution to the fact that the consent of all is needed to justify appropriation in the state of

nature. If others are not harmed, they have no grounds to object and can be thought to consent,

whereas if they are harmed, it is implausible to think of them as consenting. Sreenivasan does

depart from Tully in some important respects. He takes “enough and as good” to mean “enough

and as good opportunity for securing one's preservation,” not “enough and as good of the same

commodity (such as land).” This has the advantage of making Locke's account of property less

radical since it does not claim that Locke thought the point of his theory was to show that all

original property rights were invalid at the point where political communities were created. The

disadvantage of this interpretation, as Sreenivasan admits, is that it saddles Locke with a flawed

argument. Those who merely have the opportunity to labor for others at subsistence wages no

longer have the liberty that individuals had before scarcity to benefit from the full surplus of

value they create. Moreover poor laborers no longer enjoy equality of access to the materials

from which products can be made. Sreenivasan thinks that Locke's theory is thus unable to solve

the problem of how individuals can obtain individual property rights in what is initially owned

by all people without consent.

Simmons presents a still different synthesis. He sides with Waldron and against Tully and

Sreenivasan in rejecting the workmanship model. He claims that the references to “making” in

chapter five of the Two Treatises are not making in the right sense of the word for the

workmanship model to be correct. Locke thinks we have property in our own persons even

though we do not make or create ourselves. Simmons claims that while Locke did believe that

God had rights as creator, human beings have a different limited right as trustees, not as makers.

Simmons bases this in part on his reading of two distinct arguments he takes Locke to make: the

first justifies property based on God's will and basic human needs, the second based on “mixing”

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labor. According to the former argument, at least some property rights can be justified by

showing that a scheme allowing appropriation of property without consent has beneficial

consequences for the preservation of mankind. This argument is overdetermined, according to

Simmons, in that it can be interpreted either theologically or as a simple rule-consequentialist

argument. With respect to the latter argument, Simmons takes labor not to be a substance that is

literally “mixed” but rather as a purposive activity aimed at satisfying needs and conveniences of

life. Like Sreenivasan, Simmons sees this as flowing from a prior right of people to secure their

subsistence, but Simmons also adds a prior right to self-government. Labor can generate claims

to private property because private property makes individuals more independent and able to

direct their own actions. Simmons thinks Locke's argument is ultimately flawed because he

underestimated the extent to which wage labor would make the poor dependent on the rich,

undermining self-government. He also joins the chorus of those who find Locke's appeal to

consent to the introduction of money inadequate to justify the very unequal property holdings

that now exist.

A final question concerns the status of those property rights acquired in the state of nature after

civil society has come into being. It seems clear that at the very least Locke allows taxation to

take place by the consent of the majority rather than requiring unanimous consent (2.140).

Nozick takes Locke to be a libertarian, with the government having no right to take property to

use for the common good without the consent of the property owner. On his interpretation, the

majority may only tax at the rate needed to allow the government to successfully protect property

rights. At the other extreme, Tully thinks that, by the time government is formed, land is already

scarce and so the initial holdings of the state of nature are no longer valid and thus are no

constraint on governmental action. Waldron's view is in between these, acknowledging that

property rights are among the rights from the state of nature that continue to constrain the

government, but seeing the legislature as having the power to interpret what natural law requires

in this matter in a fairly substantial way.

4. Consent, Political Obligation, and the Ends of Government

The most direct reading of Locke's political philosophy finds the concept of consent playing a

central role. His analysis begins with individuals in a state of nature where they are not subject to

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a common legitimate authority with the power to legislate or adjudicate disputes. From this

natural state of freedom and independence, Locke stresses individual consent as the mechanism

by which political societies are created and individuals join those societies. While there are of

course some general obligations and rights that all people have from the law of nature, special

obligations come about only when we voluntarily undertake them. Locke clearly states that one

can only become a full member of society by an act of express consent (Two Treatises 2.122).

The literature on Locke's theory of consent tends to focus on how Locke does or does not

successfully answer the following objection: few people have actually consented to their

governments so no, or almost no, governments are actually legitimate. This conclusion is

problematic since it is clearly contrary to Locke's intention.

Locke's most obvious solution to this problem is his doctrine of tacit consent. Simply by walking

along the highways of a country a person gives tacit consent to the government and agrees to

obey it while living in its territory. This, Locke thinks, explains why resident aliens have an

obligation to obey the laws of the state where they reside, though only while they live there.

Inheriting property creates an even stronger bond, since the original owner of the property

permanently put the property under the jurisdiction of the commonwealth. Children, when they

accept the property of their parents, consent to the jurisdiction of the commonwealth over that

property (Two Treatises 2.120). There is debate over whether the inheritance of property should

be regarded as tacit or express consent. On one interpretation, by accepting the property, Locke

thinks a person becomes a full member of society, which implies that he must regard this as an

act of express consent. Grant suggests that Locke's ideal would have been an explicit mechanism

of society whereupon adults would give express consent and this would be a precondition of

inheriting property. On the other interpretation, Locke recognized that people inheriting property

did not in the process of doing so make any explicit declaration about their political obligation.

Hannah Pitkin takes a very different approach. She claims that the logic of Locke's argument

makes consent far less important in practice than it might appear. Tacit consent is indeed a

watering down of the concept of consent, but Locke can do this because the basic content of

what governments are to be like is set by natural law and not by consent. If consent were truly

foundational in Locke's scheme, we would discover the legitimate powers of any given

government by finding out what contract the original founders signed. Pitkin, however, thinks

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that for Locke the form and powers of government are determined by natural law. What really

matters, therefore, is not previous acts of consent but the quality of the present government,

whether it corresponds to what natural law requires. Locke does not think, for example, that

walking the streets or inheriting property in a tyrannical regime means we have consented to that

regime. It is thus the quality of the government, not acts of actual consent, that determine

whether a government is legitimate. Simmons objects to this interpretation, saying that it fails to

account for the many places where Locke does indeed say a person acquires political obligations

only by his own consent.

John Dunn takes a still different approach. He claims that it is anachronistic to read into Locke a

modern conception of what counts as “consent.” While modern theories do insist that consent is

truly consent only if it is deliberate and voluntary, Locke's concept of consent was far more

broad. For Locke, it was enough that people be “not unwilling.” Voluntary acquiescence, on

Dunn's interpretation, is all that is needed. As evidence Dunn can point to the fact that many of

the instances of consent Locke uses, such as “consenting” to the use of money, make more sense

on this broad interpretation. Simmons objects that this ignores the instances where Locke does

talk about consent as a deliberate choice and that, in any case, it would only make Locke

consistent at the price of making him unconvincing.

Most of these approaches focus on Locke's doctrine of consent as a solution to the problem of

political obligation. A different approach asks what role consent plays in determining, here and

now, the legitimate ends that governments can pursue. One part of this debate is captured by the

debate between Seliger and Kendall, the former viewing Locke as a constitutionalist and the

latter viewing him as giving almost untrammeled power to majorities. On the former

interpretation, a constitution is created by the consent of the people as part of the creation of the

commonwealth. On the latter interpretation, the people create a legislature which rules by

majority vote. A third view, advanced by Tuckness, holds that Locke was flexible at this point

and gave people considerable flexibility in constitutional drafting.

A second part of the debate focuses on ends rather than institutions. Locke states in the Two

Treatises that the power of the Government is limited to the public good. It is a power that hath

“no other end but preservation” and therefore cannot justify killing, enslaving, or plundering the

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citizens. (2.135). Libertarians like Nozick read this as stating that governments exist only to

protect people from infringements on their rights. An alternate interpretation, advanced in

different ways by Tuckness, draws attention to the fact that in the following sentences the

formulation of natural law that Locke focuses on is a positive one, that “as much as possible”

mankind is to be preserved. On this second reading, government is limited to fulfilling the

purposes of natural law, but these include positive goals as well as negative rights. On this view,

the power to promote the common good extends to actions designed to increase population,

improve the military, strengthen the economy and infrastructure, and so on, provided these steps

are indirectly useful to the goal of preserving the society. This would explain why Locke, in the

Letter, describes government promotion of “arms, riches, and multitude of citizens” as the proper

remedy for the danger of foreign attack (Works 6: 42)

5. Locke and Punishment

John Locke defined political power as “a Right of making Laws with Penalties of Death, and

consequently all less Penalties” (Two Treatises 2.3). Locke’s theory of punishment is thus central

to his view of politics and part of what he considered innovative about his political philosophy.

But he also referred to his account of punishment as a “very strange doctrine” (2.9), presumably

because it ran against the assumption that only political sovereigns could punish. Locke believed

that punishment requires that there be a law, and since the state of nature has the law of nature to

govern it, it is permissible to describe one individual as “punishing” another in that state.

Locke’s rationale is that since the fundamental law of nature is that mankind be preserved and

since that law would “be in vain” with no human power to enforce it, it must therefore be

legitimate for individuals to punish each other even before government exists. In arguing this,

Locke was disagreeing with Samuel Pufendorf. Samuel Pufendorf had argued strongly that the

concept of punishment made no sense apart from an established positive legal structure.

Locke realized that the crucial objection to allowing people to act as judges with power to punish

in the state of nature was that such people would end up being judges in their own cases. Locke

readily admitted that this was a serious inconvenience and a primary reason for leaving the state

of nature (Two Treatises 2.13). Locke insisted on this point because it helped explain the

transition into civil society. Locke thought that in the state of nature men had a liberty to engage

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in “innocent delights” (actions that are not a violation of any applicable laws), to seek their own

preservation within the limits of natural law, and to punish violations of natural law. The power

to seek one’s preservation is limited in civil society by the law and the power to punish is

transferred to the government. (128–130). The power to punish in the state of nature is thus the

foundation for the right of governments to use coercive force.

The situation becomes more complex, however, if we look at the principles which are to guide

punishment. Rationales for punishment are often divided into those that are forward-looking and

backward-looking. Forward-looking rationales include deterring crime, protecting society from

dangerous persons, and rehabilitation of criminals. Backward-looking rationales normally focus

on retribution, inflicting on the criminal harm comparable to the crime. Locke may seem to

conflate these two rationales in passages like the following:

And thus in the State of Nature, one Man comes by a Power over another; but yet no Absolute or

Arbitrary Power, to use a Criminal when he has got him in his hands, according to the passionate

heats, or boundless extravagancy of his own Will, but only to retribute to him, so far as calm

reason and conscience dictates, what is proportionate to his Transgression, which is so much as

may serve for Reparation and Restraint. For these two are the only reasons, why one Man may

lawfully do harm to another, which is that [which] we call punishment. (Two Treatises 2.8)

Locke talks both of retribution and of punishing only for reparation and restraint. Some have

argued that this is evidence that Locke is combining both rationales for punishment in his theory

(Simmons 1992). A survey of other seventeenth-century natural rights justifications for

punishment, however, indicates that it was common to use words like “retribute” in theories that

reject what we would today call retributive punishment. In the passage quoted above, Locke is

saying that the proper amount of punishment is the amount that will provide restitution to injured

parties, protect the public, and deter future crime. Locke’s attitude toward punishment in his

other writings on toleration, education, and religion consistently follows this path toward

justifying punishment on grounds other than retribution. His emphasis on restitution is

interesting because restitution is backward looking in a sense (it seeks to restore an earlier state

of affairs) but also forward looking in that it provides tangible benefits to those who receive the

restitution (Tuckness 2010). There is a link here between Locke’s understanding of natural

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punishment and his understanding of legitimate state punishment. Even in the state of nature, a

primary justification for punishment is that it helps further the positive goal of preserving human

life and human property. The emphasis on deterrence, public safety, and restitution in

punishments administered by the government mirrors this emphasis.

Recent scholarship, however, has argued that there is an asymmetry between the two cases

because Locke also talks about states being limited in the goals that they can pursue. Locke often

says that the power of the government is to be used for the protection of the rights of its own

citizens, not for the rights of all people everywhere (Two Treatises 1.92, 2.88, 2.95, 2.131,

2.147). Locke argues that in the state of nature a person is to use the power to punish to preserve

his society, mankind as a whole. After states are formed, however, the power to punish is to be

used for the benefit of his own particular society (Tuckness 2008). In the state of nature, a person

is not required to risk his life for another (Two Treatises 2.6) and this presumably would also

mean a person is not required to punish in the state of nature when attempting to punish would

risk the life of the punisher. Locke may therefore be objecting to the idea that soldiers can be

compelled to risk their lives for altruistic reasons. In the state of nature, a person could refuse to

attempt to punish others if doing so would risk his life and so Locke reasons that individuals may

not have consented to allow the state to risk their lives for altruistic punishment of international

crimes.

6. Separation of Powers and the Dissolution of Government

Locke claims that legitimate government is based on the idea of separation of powers. First and

foremost of these is the legislative power. Locke describes the legislative power as supreme

(Two Treatises 2.149) in having ultimate authority over “how the force for the commonwealth

shall be employed” (2.143). The legislature is still bound by the law of nature and much of what

it does is set down laws that further the goals of natural law and specify appropriate punishments

for them (2.135). The executive power is then charged with enforcing the law as it is applied in

specific cases. Interestingly, Locke’s third power is called the “federative power” and it consists

of the right to act internationally according to the law of nature. Since countries are still in the

state of nature with respect to each other, they must follow the dictates of natural law and can

punish one another for violations of that law in order to protect the rights of their citizens.

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The fact that Locke does not mention the judicial power as a separate power becomes clearer if

we distinguish powers from institutions. Powers relate to functions. To have a power means that

there is a function (such as making the laws or enforcing the laws) that one may legitimately

perform. When Locke says that the legislative is supreme over the executive, he is not saying

that parliament is supreme over the king. Locke is simply affirming that “what can give laws to

another, must needs be superior to him” (Two Treatises 2.150). Moreover, Locke thinks that it is

possible for multiple institutions to share the same power; for example, the legislative power in

his day was shared by the House of Commons, the House of Lords, and the King. Since all three

needed to agree for something to become law, all three are part of the legislative power ( 1.151).

He also thinks that the federative power and the executive power are normally placed in the

hands of the executive, so it is possible for the same person to exercise more than one power (or

function). There is, therefore, no one to one correspondence between powers and institutions

(Tuckness 2002a).

If we compare Locke’s formulation of separation of powers to the later ideas of Montesquieu, we

see that they are not so different as they may initially appear. Although Montesquieu gives the

more well-known division of legislative, executive, and judicial, as he explains what he means

by these terms he reaffirms the superiority of the legislative power and describes the executive

power as having to do with international affairs (Locke’s federative power) and the judicial

power as concerned with the domestic execution of the laws (Locke’s executive power). It is

more the terminology than the concepts that have changed. Locke considered arresting a person,

trying a person, and punishing a person as all part of the function of executing the law rather than

as a distinct function.

Locke believed that it was important that the legislative power contain an assembly of elected

representatives, but as we have seen the legislative power could contain monarchical and

aristocratic elements as well. Locke believed the people had the freedom to created “mixed”

constitutions that utilize all of these. For that reason, Locke’s theory of separation of powers

does not dictate one particular type of constitution and does not preclude unelected officials from

having part of the legislative power. Locke was more concerned that the people have

representatives with sufficient power to block attacks on their liberty and attempts to tax them

without justification. This is important because Locke also affirms that the community remains

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the real supreme power throughout. The people retain the right to “remove or alter” the

legislative power (Two Treatises 2.149). This can happen for a variety of reasons. The entire

society can be dissolved by a successful foreign invasion (2.211), but Locke is more interested in

describing the occasions when the people take power back from the government to which they

have entrusted it. If the rule of law is ignored, if the representatives of the people are prevented

from assembling, if the mechanisms of election are altered without popular consent, or if the

people are handed over to a foreign power, then they can take back their original authority and

overthrow the government (2.212–17). They can also rebel if the government attempts to take

away their rights (2.222). Locke thinks this is justifiable since oppressed people will likely rebel

anyway and those who are not oppressed will be unlikely to rebel. Moreover, the threat of

possible rebellion makes tyranny less likely to start with (2.224–6). For all these reasons, while

there are a variety of legitimate constitutional forms, the delegation of power under any

constitution is understood to be conditional.

The concept of an “appeal to heaven” is an important concept in Locke’s thought. Locke

assumes that people, when they leave the state of nature, create a government with some sort of

constitution that specifies which entities are entitled to exercise which powers. Locke also

assumes that these powers will be used to protect the rights of the people and to promote the

public good. In cases where there is a dispute between the people and the government about

whether the government is fulfilling its obligations, there is no higher human authority to which

one can appeal. The only appeal left, for Locke, is the appeal to God. The “appeal to heaven,”

therefore, involves taking up arms against your opponent and letting God judge who is in the

right.

7. Toleration

In Locke's Letter Concerning Toleration, he develops several lines of arguments that are

intended to establish the proper spheres for religion and politics. His central claims are that

government should not use force to try to bring people to the true religion and that religious

societies are voluntary organizations that have no right to use coercive power over their own

members or those outside their group. One recurring line of argument that Locke uses is

explicitly religious. Locke argues that neither the example of Jesus nor the teaching of the New

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Testament gives any indication that force is a proper way to bring people to salvation. He also

frequently points out what he takes to be clear evidence of hypocrisy, namely that those who are

so quick to persecute others for small differences in worship or doctrine are relatively

unconcerned with much more obvious moral sins that pose an even greater threat to their eternal

state.

In addition to these and similar religious arguments, Locke gives three reasons that are more

philosophical in nature for barring governments from using force to encourage people to adopt

religious beliefs (Works 6:10–12). First, he argues that the care of men's souls has not been

committed to the magistrate by either God or the consent of men. This argument resonates with

the structure of argument used so often in the Two Treatises to establish the natural freedom and

equality of mankind. There is no command in the Bible telling magistrates to bring people to the

true faith and people could not consent to such a goal for government because it is not possible

for people, at will, to believe what the magistrate tells them to believe. Their beliefs are a

function of what they think is true, not what they will. Locke's second argument is that since the

power of the government is only force, while true religion consists of genuine inward persuasion

of the mind, force is incapable of bringing people to the true religion. Locke's third argument is

that even if the magistrate could change people's minds, a situation where everyone accepted the

magistrate's religion would not bring more people to the true religion. Many of the magistrates of

the world believe religions that are false.

Locke's contemporary, Jonas Proast, responded by saying that Locke's three arguments really

amount to just two, that true faith cannot be forced and that we have no more reason to think that

we are right than anyone else has. Proast argued that force can be helpful in bringing people to

the truth “indirectly, and at a distance.” His idea was that although force cannot directly bring

about a change of mind or heart, it can cause people to consider arguments that they would

otherwise ignore or prevent them from hearing or reading things that would lead them astray. If

force is indirectly useful in bringing people to the true faith, then Locke has not provided a

persuasive argument. As for Locke's argument about the harm of a magistrate whose religion is

false using force to promote it, Proast claimed that this was irrelevant since there is a morally

relevant difference between affirming that the magistrate may promote the religion he thinks true

and affirming that he may promote the religion that actually is true. Proast thought that unless

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one was a complete skeptic, one must believe that the reasons for one's own position are

objectively better than those for other positions.

Jeremy Waldron (1993), in an influential article, restated the substance of Proast's objection for a

contemporary audience. He argued that, leaving aside Locke's Christian arguments, his main

position was that it was instrumentally irrational, from the perspective of the persecutor, to use

force in matters of religion because force acts only on the will and belief is not something that

we change at will. Waldron pointed out that this argument blocks only one particular reason for

persecution, not all reasons. Thus it would not stop someone who used religious persecution for

some end other than religious conversion, such as preserving the peace. Even in cases where

persecution does have a religious goal, Waldron agrees with Proast that force may be indirectly

effective in changing people's beliefs. Much of the current discussion about Locke's contribution

to contemporary political philosophy in the area of toleration centers on whether Locke has a

good reply to these objections from Proast and Waldron.

Some contemporary commentators try to rescue Locke's argument by redefining the religious

goal that the magistrate is presumed to seek. Susan Mendus, for example, notes that successful

brainwashing might cause a person to sincerely utter a set of beliefs, but that those beliefs might

still not count as genuine. Beliefs induced by coercion might be similarly problematic. Paul Bou

Habib argues that what Locke is really after is sincere inquiry and that Locke thinks inquiry

undertaken only because of duress is necessarily insincere. These approaches thus try to save

Locke's argument by showing that force really is incapable of bringing about the desired

religious goal.

Other commentators focus on Locke's first argument about proper authority, and particularly on

the idea that authorization must be by consent. David Wootton argues that even if force

occasionally works at changing a person's belief, it does not work often enough to make it

rational for persons to consent to the government exercising that power. A person who has good

reason to think he will not change his beliefs even when persecuted has good reason to prevent

the persecution scenario from ever happening. Richard Vernon argues that we want not only to

hold right beliefs, but also to hold them for the right reasons. Since the balance of reasons rather

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than the balance of force should determine our beliefs, we would not consent to a system in

which irrelevant reasons for belief might influence us.

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Natural Law Theory Introduction

This entry considers natural law theories only as theories of law. That is not to say that legal

theory can be adequately identified and pursued independently of moral and political theory. Nor

is it to deny that there are worthwhile natural law theories much more concerned with

foundational issues in ethics and political theory than with law or legal theory. A sample of such

wider and more foundational theories is the entry Aquinas' Moral, Political, and Legal

Philosophy (Finnis 2005/2011). In the present entry, “natural law theory” is to be taken as

shorthand for natural law theories just insofar as they bear on law and are theories of or about it.

This focus has the important incidental effect that many historically important differences

between natural law theorists can be omitted, differences which pertain more to the foundations

of normativity than to the nature and functions (or “the concept”) of positive law.

Legal theorists who present or understand their theories as “positivist”, or as instances of “legal

positivism”, take their theories to be opposed to, or at least clearly distinct from, natural law

theory. Natural law theorists, on the other hand, did not conceive their theories in opposition to,

or even as distinct from, legal positivism (contra Soper 1992 at 2395). The term “positive law”

was put into wide philosophical circulation first by Aquinas, and natural law theories of his kind

share, or at least make no effort to deny, many or virtually all “positivist” theses—except of

course the bare thesis that natural law theories are mistaken. Natural law theory accepts that law

can be considered and spoken of both as a sheer social fact of power and practice, and as a set of

reasons for action that can be and often are sound as reasons and therefore normative for

reasonable people addressed by them. This dual character of positive law is presupposed by the

well-known slogan “Unjust laws are not laws.” Properly understood, that slogan indicates why—

unless based upon some skeptical denial that there are any sound reasons for action (a denial

which can be set aside because defending it is self-refuting)—positivist opposition to natural law

theories is pointless, that is redundant: what positivists characteristically see as realities to be

affirmed are already affirmed by natural law theory, and what they characteristically see as

illusions to be dispelled are no part of natural law theory. But because legal theories conceived of

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by their authors as positivist are, by and large, dominant in the milieux of those likely to be

reading this entry, it seems appropriate to refer to those theories along the way, in the hope of

overcoming misunderstandings that (while stimulating certain clarifications and improvements

of natural law theorizing) have generated some needless debate.

In short: a natural law theory of (the nature of) law seeks both to give an account of the facticity

of law and to answer questions that remain central to understanding law. As listed by Green 2003

(having observed that “No legal philosopher can be only a legal positivist), these further

questions (which “legal positivism does not aspire to answer”) are: What kinds of things could

possibly count as merits of law? What role should law play in adjudication? What claim has law

on our obedience? What laws should we have? And should we have law at all? All these

questions, though organized and articulated a little differently, are under consideration in the

present entry.

1. Enabling positivity: social facts made reasons for action

The fulcrum and central question of natural law theories of law is: How and why can law, and its

positing in legislation, judicial decisions, and customs, give its subjects sound reason for acting

in accordance with it? How can a rule's, a judgment's, or an institution's legal (“formal,”

“systemic”) validity, or its facticity or efficacy as a social phenomenon (e.g., of official practice),

make it authoritative in its subject's deliberations?

The sense and force of these questions, and the main features of the kind of answer given by

natural law theories, can be given a preliminary indication. On the one hand, natural law theory

holds that law's “source-based character”—its dependence upon social facts such as legislation,

custom or judicially established precedents—is a fundamental and primary element in “law's

capacity to advance the common good, to secure human rights, or to govern with integrity” (cf.

Green 2003). On the other hand (again cf. Green 2003), the question “whether law is of its very

nature morally problematic” has from the outset been the subject of consideration by leaders of

the tradition. (The first issue that Aquinas takes up about human law in his set-piece discussion

of law, Summa Theologiae, I-II, q. 95 a. 1, is whether human law [positive law] is beneficial—

might we not do better with exhortations and warnings, or with judges appointed simply to “do

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justice”, or with wise leaders ruling as they see fit? And see I.3 below.) Classic and leading

contemporary texts of natural law theory treat law as morally problematic, understanding it as a

normally indispensable instrument of great good but one that readily becomes an instrument of

great evil unless its authors steadily and vigilantly make it good by recognizing and fulfilling

their moral duties to do so, both in settling the content of its rules and principles and in the

procedures and institutions by which they make and administer it. Natural law theories all

understand law as a remedy against the great evils of, on the one side anarchy (lawlessness), and

on the other side tyranny. And one of tyranny's characteristic forms is the co-optation of law as a

mask for fundamentally lawless decisions cloaked in the forms of law and legality.

1.1 Basic reasons for action and the need for governmental authority

If one thinks perceptively and carefully about what to pursue (or shun) and do (or forbear from),

one can readily understand and assent to practical propositions such as that life and health,

knowledge, and harmony with other people are desirable for oneself and anyone else. The

intrinsic desirability of such states of affairs as one's flourishing in life and health, in knowledge

and in friendly relations with others, is articulated in foundational, underived principles of

practical reasoning (reasoning towards choice and action). Such first principles of practical

reasoning direct one to actions and dispositions and arrangements that promote such intelligible

goods, and that directiveness or normativity is expressed by “I should…” or “I ought…” in

senses which although truly normative are only incipiently moral.

A natural law moral theory will give an account of the way in which first principles of practical

reason take on a moral force by being considered, not one by one but in their united (“integral”)

directiveness. That integral directiveness is given specific (albeit highly general) articulation in

principles such as the injunction to love one's neighbor as oneself; or the Golden Rule of doing

for others what you would want them to do for you and not doing to others what you would not

have them do to you; or the “categorical imperatives” to respect, and treat as intrinsically

valuable, humanity (the basic aspects of human flourishing) in oneself and in others, so that each

of one's communities is treated as a kingdom of ends—of persons each ends in themselves. Such

high-level but far from contentless moral principles can be given further specificity in two ways

(1) by identifying what, given some broadly stable features of human reality, they entail (see

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1.2–4), and (2) by a rational but more or less non-deductive selection among alternative

specifications, a selection named by Aquinas determinatio (plural, determinationes) (see 1.5).

Political communities are a kind of institution whose rational status as a normally desirable and

obligatory objective of and context for collaborative action (and forbearance) can easily be seen

to be entailed by the foundational practical and moral principles. In such communities, the

normal means for making the needed determinationes is the institution of governmental authority

acting in the first instance through legislation and other forms of law-making, i.e., acting as a

social-fact source of positive (posited) law.

The political-theoretical part of natural law theory explains and elaborates the grounds and

proper forms of governmental authority. It explains the similarities and differences between the

practical authority of rulers (including democratic electors acting as selectors of representatives

or as plebiscitary decision-makers) and the theoretical authority of experts and persons of sound

judgment. It shows the grounds for instituting and accepting practical authority as an almost

invariably necessary means for preventing forms of harm and neglect which, because contrary to

the high-level moral principles (at least as they bear on relationships between persons), involve

injustice. Political theory subsumes, as one of its branches, legal theory. As legal theory, political

theory explains the normal desirability that governmental authority in political communities be

exercised within the framework of (in the classic slogan) a “rule of law and not of men” (1.3).

1.1.1 Why “natural” law? Naturalistic fallacy?

What does the mainstream of natural law theory intend by using the word “natural” in that name

for the theory? The shortest accurate answer is “of reason,” as in “the law of reason” or “the

requirements of reason.” Aquinas is particularly clear and explicit that in this context, “natural”

is predicated of something (say, a law, or a virtue) only when and because that of which it is

predicated is in line with reason, practical reason, or practical reason's requirements: see Finnis

1980, 35–6. Moreover, he employs, through all his works, a methodological axiom: X's nature is

understood by understanding X's capacities, which are understood by understanding their

act[uation]s, which are understood by understanding their objects. But the objects of chosen acts

are the intelligible intrinsic goods (aspects of human flourishing) which we are directed to by

practical reason's first principles. So the equation, in this context, of “natural” and “rational” and

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its cognates is no mere confusion, but grounded in a sophisticated distinction between ontology

and epistemology: in the order of being, what is good and reasonable for us is a resultant of what

is foundational, our given nature; but in the order of coming to know, our knowledge of our

nature is in significant part a resultant of our understanding of what kinds of possible objects of

choice are good.

1.2 Political authority as remedy for anarchy, injustice and impoverishment

The texts that are earliest (e.g., the Platonic or pseudo-Platonic Minos: Lewis 2006) and most

foundational (e.g., Plato's Gorgias, Republic and Laws, and Aristotle's Politics) in the tradition of

natural law theory remind their readers of the evident evils of anarchy: a condition of things in

which no person or body of persons efficaciously claims or is accepted widely as having

authority to restrict the use of violence, theft and fraud, and in which any conventional norms of

conduct are made hollow by irresolvable disputes about their content and/or their application. In

such a state of affairs, the more strong, cunning and ruthless prey on the less, education of

children (which calls for resources outside the family) is difficult to accomplish, and economic

activity remains stunted by the insecurity of holdings and the unreliability of undertakings. There

is evident need for persons who will articulate and enforce standards of conduct which will tend

to promote the common good of bodily security, stable access to resources, cooperation in

economic and educational activities, and rectification (by punishment, compensation and

restitution) of at least the grosser inter-personal injuries of commission and neglect. To articulate

that need is to state the reasons for instituting and supporting political authority, notably state

government and law, on condition that these institutions carry on their legislative, executive and

judicial activities substantially for the common good of the inhabitants of the relevant territory,

rather than in the interests of a segment of the population unfairly indifferent or hostile to the

interests and wellbeing of other segments.

1.3 Rule of law as remedy for the dangers in having rulers

Aristotle (Politics III.15.1286a–IV 4 1292a) vigorously debates the question whether political

authority is better exercised through a “rule [primacy, supremacy] of law” or “a rule of men,” say

of one best person, or a democratic assembly, or indeed (Rhetoric I 1 1354a32–b16) a court. He

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takes his arguments to suggest the answer that in almost all societies, on almost all occasions and

issues, it is preferable that government be by or in accordance with law, since (i) laws are

products of reason(s) not passion(s), (ii) the sovereignty of a ruler or assembly tends to tyranny

(i.e., rule in interests of a section, not common good), (iii) equality demands that each mature

person have some share in governing, and (iv) rotation of offices and office-holders is desirable

and can hardly be managed without legal regulation. So for Aristotle, the central case of practical

authority is government of a polis by law and legally regulated rulers.

Thomas Aquinas' account of human positive law treats the central case of government as the

self-government of a free people by the rulers and institutions which that people has appointed

for that purpose, and the central case of law is the co-ordination of willing subjects by law

which, by its public character (promulgation), clarity, generality, stability and practicability,

treats those subjects as partners in public reason (Summa Theologiae I-II q. 90 a. 4c; q. 95 a. 3c;

q. 96 a. 1; q. 97 a. 2). For he defines law as universal (in the logician's sense of “universal”)

practical propositions conceived in the reason of the ruler(s) and communicated to the reason of

the ruled so that the latter will treat those propositions, at least presumptively, as reasons for

action—reasons as decisive for each of them as if each had conceived and adopted them by

personal judgment and choice.

Lon Fuller 1969, acknowledging Aquinas' lead in this discussion of formal and procedural

aspects of legal system, pulls together Aquinas' scattered and fragmentary remarks about them

into an orderly list of eight elements of the rule of law, that is of la primauté du droit, the legal

system of a Rechtsstaat. He shows that these hang together as a set of desiderata (or

requirements) because they are implications or specifications of the aspiration and duty to treat

people as presumptively entitled—as a matter of fairness and justice—to be ruled as free

persons, fundamentally the equals of their rulers, not puppets or pawns to be managed and kept

in order by manipulation, uncertainty, fear, etc. The normal result of such fairness in the

procedures of making and maintaining the law will be to strengthen the law's efficacy, too.

Unfortunately, the surface of Fuller's text gives more prominence to effectiveness than to

fairness, and many critics (e.g., Hart, Dworkin), overlooking the moral connotations of Fuller's

allusions to reciprocity between rulers and ruled, thought his book's title, The Morality of Law, a

misnomer. This thesis has been elaborated more carefully and on a different basis by Raz 1979

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and Kramer 2004a and 2004b: although the rule of law (and compliance with it) can be morally

important and even a moral virtue (because normally necessary for fully just government in a

just society, and especially for alleviating dangers that arise from the existence of political

authority, and of law itself), it is nonetheless in itself morally neutral since (in states which

employ the forms of law) it will normally be needed even by deeply unjust rulers for advancing

their immoral purposes. It is like a sharp knife, whose sharpness makes it apt for life-saving

surgery but equally for stealthy callous murders (Raz 1979, 224–6).

Finnis 1980/2011, 273–4 and Simmonds 2004, 2005, 2006, 2007 have challenged the quasi-

empirical claim that even vicious tyrants need or find it apt, for the efficacy of their domination,

to comply with the requirements of the rule of law. The eighth of Fuller's elements of the rule of

law, viz. adherence by the rulers to their own rules in their conduct of government, is especially

obstructive, rather than supportive, of a tyranny's purposes. But the focus of Fuller's concern, and

the most fruitful locus of debate, is not so much on historical or sociological phenomena but on

the “internal,” practical reasons at stake. If the rulers somewhere do not respect the rights and

interests of some of their subjects in relation to issues of substance (life, bodily security,

freedom, property, and so forth), why should the rulers—what reason have they to—respect their

subjects' rights or interests in the matters of procedure involved in the rule of law (giving them

fair notice of what is expected of them, and adhering as rulers to the promulgated law when

assessing these subjects' conduct and in other governmental dealings with those subjects)? A

more or less inconsistent willingness of rulers to tie their own hands by scrupulous adherence to

procedural justice while yet being substantively unjust, is of course psychologically possible. But

Fuller's primary concern, like that of the wider tradition of natural law theory, is with rationality

and the specific implication of fully coherent reasonableness: morally reasonable judgment and

choice.

1.4 Ius gentium—ius cogens—mala in se—human rights: legal rules and rights posited

because morally necessary parts of any legal system

Fuller offered a merely procedural natural law theory, though he did not deny that a substantive

natural law theory is possible and appropriate. And indeed there is no sufficient reason to follow

him in restricting the range of practical-theoretical reflection on what is needed for a political

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society worthy of the self-restraints and acceptance of responsibilities that the law requires of

those to whom it applies. For it is clear that the procedures and institutions of law are in the

service of substantive purposes: the restriction of violence, theft and fraud, the recovery of things

misappropriated from their lawful owners or possessors, and of losses wrongfully imposed,

protection of intangible goods such as reputation against unwarranted defamation, and of the

immature, the mentally disabled and other vulnerable people against sexual or other exploitation,

and so forth.

That portion of our positive law which consists of legal principles or rules giving effect to

purposes such as those just listed was often named, by natural law theories, ius [or jus] gentium.

Minted by jurists of classical Roman law such as Gaius (c. 165 AD), this name—literally “the

law of peoples”—alludes to the set of rules and principles found in similar if not identical forms

in virtually all legal systems. The reason for their ubiquity is, generally speaking, that any

reasonable consideration of what it takes for individuals, families and other associations to live

together in political society, tolerably well, will identify these principles and rules as necessary.

In modern law they are picked out, in principle, by names such as “the general principles of law

recognized by civilized nations” (Statute of the International Court of Justice, art. 38), ius cogens

erga omnes (literally “law that is compelling [without agreement or enactment or other forms of

adoption] in relation to everyone”), “higher law”, or “fundamental human rights.” In Aquinas's

theory of law, they are referred to as conclusions (entailments) of the very highest-level, most

general moral principles. In the common law tradition, the legal wrongs picked out by such

principles have been called mala in se, as distinct from mala prohibita—things wrong in

themselves as distinct from things wrong only because prohibited by (positive) law—and this

distinction remains, for good reason, in use in judicial reasoning.

Some legal theories speak of these principles and rules as belonging to law by a kind of

“conceptual” necessity. Hart (1961) can be so read. But even Hart's account, on closer

examination, identifies the relevant necessity not as conceptual or linguistic but as an instance of

the rational necessity of means needed to secure purposes which are non-optional. It was for this

reason that Hart spoke of them as constituting “the minimum content of natural law.” He would

have expressed his own meaning more perspicuously had he spoken instead of “the minimum

content of positive law, the minimum set of principles which, because rationally necessitated —

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given certain fundamental “truisms” about human nature and the human predicament—for the

securing of purposes shared by all survivable human societies, can be called natural law.” The

fact is that these elements of our law are both positive (made and part of official practice) and

natural (rationally required for at least minimal human flourishing).

These issues are discussed further in Section 3 below.

1.5 “Purely positive law”: determinationes and their legal-moral authority for citizens and

judges (facts made reasons for action)

Natural law theory of law has its most distinctive characteristic in its account of purely positive

law which, though “entirely” dependent for its legal status on the fact that it has been

authoritatively posited by some persons(s) or institution, nonetheless shares in law's

characteristic of entailing—albeit presumptively and defeasibly—a moral obligation of

compliance. About these rules of a positive legal system, Aquinas says that, though they

certainly should be, and be presumed to have been, “derived from natural law”, they have their

legal force only from their part in this posited system (ex sola lege humana vigorem habent: ST I-

II, q. 95 a. 3).

His explanation, slightly updated: this very large part of our law could reasonably have been

different, in the way that every detail of a maternity hospital could have been somewhat different

and large portions of the design could have been very different, even though some features (e.g.,

that the doors and ceilings are more than two feet high) are entailed by the commission to build a

town maternity hospital, and every feature has some rational connection with the commission.

The kind of rational connection that holds even where the architect has wide freedom to choose

amongst indefinitely many alternatives is called by Aquinas a determinatio of principle(s)—a

kind of concretization of the general, a particularization yoking the rational necessity of the

principle with a freedom (of the law-maker) to choose between alternative concretizations, a

freedom which includes even elements of (in a benign sense) arbitrariness.

Once the determinatio is validly made, fulfilling the criteria of validity provided by or under the

relevant legal system's constitutional law, it changes the pre-existing state of the law by

introducing a new or amended legal rule and proposition(s) of law. The new or amended legal

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rule gives judges, other officials, and citizens a new or amended reason for action (or

forbearance). The fact that the new or amended rule depends upon the social-fact source

constituted or employed by the act of determinatio does not entail that a normative reason (an

“ought”) is being illogically derived from a bare fact (an “is”). Rather, the new or amended rule

is normative, directive and (where that is its legal meaning ) obligatory because that social fact

can be the second premise in a practical syllogism whose first premise is normative: “there ought

to be a maternity hospital in this town,” “people ought to be protected against homicidal assault,”

“people ought to be required to contribute to the public expenses of appropriate governmental

functions”, “victims of assault, theft, broken contracts, negligence, etc., ought to be

compensated,” “road traffic should be regulated to reduce damaging collisions,” and so forth.

The moral normativity of the principle is replicated in the more specified rule created by the

determinatio, even though the latter is not an entailment of the former.

1.5.1 “Presumptive” and “defeasible” obligatoriness

The legal-moral obligation or obligatoriness of a legal rule is counterpart to the legal-moral

authority or authoritativeness of its author (enacter) or other source. The idea of authority has

been clarified by contemporary legal theorists such as Raz and Hart, by reflection upon the kind

of reasons for action purportedly given to potentially acting subjects by an exercise of practical

authority. The relevant kind of practical reason has been variously called exclusionary,

peremptory or pre-emptive, and content-independent. The core idea is that subjects are instructed

to treat the proffered reason (say, a statutory provision, or a judicial order), in their deliberations

towards choice and action, as a reason which does not simply add to the reasons they already

have for acting one way rather another, but rather excludes and takes the place of some of those

reasons. And this exclusionary, peremptory or pre-emptive force is owed not to the inherent

attractiveness to reason of the (content of the) proffered reason, but to the status of its author or

other source as one entitled—for example, by its role in a constitutional scheme of governance

for the solution of a political community's coordination problems—to be obeyed, complied with,

treated as authoritative. See e.g., Raz 1986, 35–69. This content-independence of authoritative

reasons entails their presumptive obligatoriness. The defeasibility of that presumption is entailed

by the dependence of such reasons' peremptory, pre-emptive or exclusionary force upon a

background of presupposed basic human needs and goods, and of basic moral principles and

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norms, a background which entails that if a purportedly authoritative proffered (posited) reason

conflicts sufficiently clearly with those standing needs, goods, principles or norms its

exclusionary force is exhausted or overcome and the purported obligatoriness defeated.

2. Human persons are not law's creatures but its proper point

Talk of human flourishing's or wellbeing's aspects, and of principles of practical reason, should

not be allowed to distract attention from an important truth, implicit both in classical Greek and

Roman philosophical and juristic treatments of justice and in modern juristic attributions of

human rights. Indeed, the Universal Declaration of Human Rights (1948) links the two traditions

of discourse by placing at the head of its articulation of human rights the core (“all human beings

are born free and equal in dignity and rights”) of the Roman juristic saying (Institutes 1.2.2) that

“by nature, from the outset, all human beings were born free and equal,” a saying about iustitia,

justice as a ground and standard for ius, law. The same Roman law texts, promulgated as

permanent law by Justinian 533–535 AD, state more than once that law's point (its “final” causa,

explanatory reason) is the human persons for whose sake it is made, that is, all human persons

until the time when the ius gentium, the common law of peoples, was distorted by wars and

slavery. Law, fit to take a directive place in practical reasoning towards morally sound judgment,

is for the sake of human persons: all the members of the community regulated by that law and all

other persons within that law's ambit.

That thesis falls within those parts of legal theory that are acknowledged but not much explored

by contemporary legal positivists. It was ignored and in effect denied by earlier forms of legal

positivism more ambitious to cover the whole of legal philosophy, e.g., Kelsen's. Kelsen denied

that persons were known either to law or to a proper legal theory or science of law, except

insofar as they were made the subject of a posited legal rule. But against this restriction, which

has misled some courts which have treated Kelsenian legal science as a guide to judicial

reasoning, it can be said (Finnis 2000) that the fundamental equality and dignity of human beings

should defended as part of a rationally sound understanding (concept) of law. This defense

requires an account of the difference between capacities which are activated here and now, or are

more or less ready to be so actuated, and radical capacities such as exist in the epigenetic

primordia of even very young human beings, and in the genetic and somatic constitution of even

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the severely disabled. Though such an account makes possible a defense of the fundamental

equality of human beings, and thus a humanist legal theory, the point of the account is not to

privilege a biological species as such, but to affirm the juridical significance of the status of

persons—substances of a rational nature—as inherently the bearers (subjects) of rights of a kind

different and more respect-worthy and end-like than the rights which are often, as a matter of

technical means, attributed by law to animals, idols, ships or other objects of legal proceedings.

3. Legal principles to remedy defective positive law

3.1 Adjudicating between exclusive and inclusive legal positivism

The positivist thesis that all law depends for its existence, validity and obligatoriness on its

social-fact source(s) is often accompanied, as in Raz's “exclusive legal positivism” (Raz 1980,

212–24; Raz 1985), by the thesis that judges, as the “primary law-applying institutions,” have a

duty (moral, if not also legal) to decide certain sorts of case (e.g., cases where the existing legal

rule would by work injustice) by applying moral principles or rules which warrant amending or

even abandoning part of the existing law. “Inclusive” legal positivists temper this by holding that

the judicial duty and authorization to depart from existing law by applying moral rules or

principles is restricted to those classes of case where an existing social-fact sourced legal rule

directs the court do so; the effect of such a directive, it is said, is to include within the legal

system the moral rules or principles (if any) thus pointed to.

Natural law theory concurs with Raz and Gardner in rejecting the inclusivist restriction as

ungrounded, but dissents from them in holding (as Dworkin does too: Dworkin 1978, 47) that

any moral rule or principle which a court is bound or authorized to apply, precisely as a court,

can reasonably be counted or acknowledged as a law, i.e., as a rule or principle which should be

considered already part of our law. Against positivists generally, it holds that (i) little or nothing

turns on whether or not moral principles binding on courts precisely as courts should be called

part of our law; but (ii) if something does turn on the name—if, for example, it be recalled that

courts cannot “take judicial notice” of any rule or principle not “part of our law” (and so, as in

respect of rules of foreign law, have to hear evidence of the rule's existence and content)—it is

sounder to say that judicially applicable moral rules and principles (unlike applicable foreign

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law) are ipso iure (i.e., precisely as morally and judicially applicable) rules of law. Such rules

belong to the ius gentium portion of our law.

3.1.1 A test case: the Nuremberg question

The persons known as major German war criminals were tried in 1945 for offenses specified in

an agreement (“the London Agreement and Charter of 8 August 1945”) made between the states

governing Germany since its surrender to them. The judges held that the defendants had at all

relevant times been bound by (and in many instances had acted in violation of) the principles or

rules specified in the London Charter, such obligations being derived not, of course, from the

agreement (which was made subsequent to the acts in question), but rather, as to some of the

crimes alleged, from international law and, as to the alleged “crimes against humanity,” from the

“elementary dictates of humanity.” To hold the defendants responsible for violating these rules

and dictates, and reject any argument that their acts' compliance with German law could make

them lawful acts, was not (so the tribunal ruled) to violate the principle of law and justice that no

one should be punished except for violation of law.

The result of these rulings might be accounted for (i) by exclusive positivism: the tribunal was

morally authorized to apply moral rules, notwithstanding that the rules so applied were not rules

of law either at the time of the crimes or the time of the prosecution. But the terms of the rulings

(as just summarized) can be accounted for (ii) by inclusive positivism: the Charter was positive

law for the tribunal and directed it to apply moral rules which by virtue of that legal direction

were also legal rules. Still, (iii) natural law theory's account seems the most explanatory: the

moral rules applied were also rules of the “higher law” applicable in all times and places (and

thus in Germany and its territories, before as after the Charter) as a source of argumentation and

judgment “according to law” when the social-fact sources which are the normally dominant and

quasi-exclusive source of law are, in justice, inadequate and insufficient guides to fulfilling

obligations such as the judicial obligation to do justice according to law, or everyone's obligation

to behave with elementary humanity even when under orders not to—even if those orders have

intra-systemic legal validity according to the formal or social-fact criteria of some existing legal

system. And if one has doubts about victors' justice, those very doubts can likewise appeal to

principles of the same higher law, ius gentium, or law of reason and humanity.

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3.2 Natural law and (purely) positive law as concurrent dimensions of legal reasoning

Natural law theory of law thus finds itself, in this respect, approximated to by Ronald Dworkin's

account of law and adjudication, not only in frontier situations like Nuremberg but also in the

day-to-day working of a sophisticated legal system. Normal adjudication and judicial reasoning

has two dimensions or criteria for distinguishing correctness from incorrectness in judgments.

One dimension comprises social-fact sources (statutes, precedents, practice, etc.), called by

Dworkin “legal materials.” The other dimension comprises moral standards, presumptively those

prevalent in the judge's community but in the last analysis just those standards that the judge can

accept as in truth morally sound. An interpretation of our law which is morally sounder will be

legally correct even if it fits the legal materials less closely than alternative interpretations,

provided that it fits those social-fact sources “enough.” The moral standards thus applied, which

Dworkin (in line with natural law theory) treats as capable of being morally objective and true,

thus function as a direct source of law and, in a certain sense, as already law, except when their

fit with the whole set of social-fact sources in the relevant community is so weak that it would be

more accurate (according to Dworkin) to say that judges who apply them are applying morality

not law (and thus, if they said they were applying law, would be mistaken or lying—a lie which

Dworkin considers sometimes commendable). Dworkin 1978, 326–7, 340.

A theory of law which, unlike Dworkin's, places itself plainly in the tradition of natural law

theorizing will be likely to depart from these positions in two ways. (i) It will not accept

Dworkin's thesis that even in very hard cases there is one uniquely correct answer in law; it will

deny his assumption that there is a uniquely correct and rationally identifiable measure of how

much fit with existing legal materials (social-fact sources) is “enough” (necessary and sufficient)

to license using moral standards to identify the legally correct interpretation of the law. In the

absence of such a single measure, legal reasoning must often—and in very hard cases, usually—

be content to show that two or three alternative interpretations are distinguished from an

indefinitely large number of other interpretations by being correct, that is, not wrong (albeit not

uniquely correct). (ii) When judges, in order to avoid grave injustice, depart from the settled

understanding of the law (and perhaps from the clear terms of a decree) and apply an alternative,

morally mandated interpretation, regarding themselves as licensed to do so by the higher law of

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reason, nature and humanity, they need not be lying if they say that in doing so they are both

rectifying and applying the law (of their state). See 4 below.

3.3 Implications of the rule-of-law need for positivity

In line with Dworkin's two-dimensions account (thus qualified), natural law theory will assent to

the thesis that Green makes characteristic of legal positivism:

[1] the fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for

thinking that it is actually the law, and [2] the fact that [a law] is unjust, unwise, inefficient or

imprudent is never sufficient reason for doubting [that it is law].

For as to [1]: what the rule of law and not of men calls for is the institution of legal system, a

corpus iuris, and so what a principle of morality (natural law) or ius gentium implies would be an

appropriate rule of law is, nevertheless, not yet a part of our law—still less is a mere “policy”

made law by being “prudent” or “efficient—unless its content, conceptualization and form are so

shaped, whether in judicial or other juristic thinking or in judgment or legislation, as to cohere

with the other parts (especially neighboring parts) of our law.

As to [2]: A natural law theory, mindful of the normal desirability of a rule of law and not of

judges (see 1.3), may well be more cautious than Dworkin himself is in departing from the

settled (social-fact source-based) law. On those occasions where such a departure is morally

warranted, the theory will suggest that the judge is authorized to proceed according to the higher

and perennial law of humanity, the ius gentium or set of universal principles of law and justice

common to all civilized peoples, which deprives settled law—more precisely, what has been

accepted in the jurisdiction as being settled law—of its directiveness for subjects and judges

alike. Is this moral authorization also “legal” and “according to law”? Is the settled law which

the judge is morally authorized to set aside thereby being treated, even prior to the judge's

handing down of judgment, as not law? The following section argues that that question should be

answered both Yes and No.

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4. “Lex iniusta non est lex”? Do seriously unjust laws bind? Legally?

In such a case, does the law as settled by social-fact sources, in losing its directiveness for judges

and citizens, lose also its legal validity? The answer depends upon the discursive context in

which the question arises. If a course of reflection or discourse makes it appropriate to

acknowledge the rule's “settled” or “posited” character as cognizable by reference to social-fact

sources, one can say that it is legally valid though too unjust to be obeyed or applied. Or if the

discursive context makes it appropriate instead to point up its lack of directiveness for judges and

subjects alike, one can say that the rule, despite its links to social-fact sources, is not only not

morally directive but is also legally invalid. Each way of speaking tells an important part of the

truth, or rather, tells the truth with an emphasis which differs from the other's.

The meaning of “an unjust law is not a law” is essentially identical to Hart's “This is law but too

iniquitous to be applied or obeyed” (or availed of as a defense). The excitement and hostility

aroused amongst modern legal theorists (notably Hart) by the former way of speaking is

unwarranted. No one has difficulty in understanding locutions such as “an invalid argument is no

argument,” “a disloyal friend is not a friend,” “a quack medicine is not medicine,” and so forth.

“Lex iniusta non est lex” has the same logic; it acknowledges, in its opening words, that what is

in question is in certain important respects—perhaps normally and presumptively decisive

respects—a law, but then in its withdrawal or denial of that predicate it affirms that, since justice

is the very point of having and respecting law at all, this particular law's deficiency in justice

deprives it of the decisive significance which all law purports to have. It is thus law only in a

sense that should be judged—especially when law is regarded, as by Hart himself, as a kind of

reason or purported reason for action—to be a distorted and secondary, non-central sense.

Note: Classical political theory, as expounded by Plato, Aristotle and Aquinas, makes regular use

of this distinction between central and perverted or otherwise marginal instances of an analogical

concept or term, and so Aquinas never says simply “unjust law is not law” but rather “unjust law

is not straightforwardly or unqualifiedly [simpliciter] law” or “is a perversion of law”, and

similar statements. Still, he does elsewhere say that “an unjust judgment [of a court] is not a

judgment” and it seems clear that he might similarly have used the simplified or slogan-form

locution, about law, as short-hand.

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All this seems to have been overlooked by Hart in his polemic (Hart 1961, 204–7; 1994, 208–12)

against “lex iniusta non est lex.” Hart's argument that use of the slogan must tend to discourage

or confuse the moral critique of law seems historically and logically indefensible. The slogan is

unintelligible save as an expression of and incitement to engaging in such critiques; it can

scarcely be rejected without first misquoting it, as Hart and those who employ his argument

almost invariably do, averting their gaze from the slogan's first predicate and implied assertion:

that the unjust rule in question is a rule of law.

5. Can general theories of law be value-free? moral-value-free?

Descriptions of the valuations made by particular persons or societies can of course be value-

free. Doubtless the historian, detective or other observer thinks there is some value in making the

investigation and resultant description, but that valuation in no way need enter into the

description. Still less need the description either approve or disapprove of the valuations which it

reports. But the situation is different if one's aspiration is to offer a general account of human

practices or institutions, such as law, friendship, constitutions, and so forth. Here one confronts

the necessity of selecting and prioritizing not merely the investigation itself but rather some one

set of concepts (and corresponding terms) from among (or over and above) the range of terms

and concepts already employed in the self-understanding of the individuals and groups under (or

available for) study.

Where the subject-matter of the projected descriptive general account is some practice or

institution devised by (more or less adequate exercises of) reason, and addressed to the rational

deliberations of individuals and groups, there will normally be no good reason not to prioritise

those forms of the practice or institution which are more rational, more reasonable, more

responsive to reasons, than other forms of the “same” or analogous practices and institutions.

The standard for assessing reasonableness for this theoretical purpose is, in the last analysis, the

set of criteria of reasonableness that the descriptive theorist would use in dealing with similar

practical issues in his or her own life.

This necessity of value-laden selection of concepts and terms for use in a general theory of social

realities such as law is evidenced in the work of Max Weber, prophet of “value-free” social

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science. His account, for example, of forms of domination (Herrlichkeit) identifies three pure,

central, characteristic types (ideal Typen): charismatic, traditional, and rational (bureaucratic,

legal). But the accounts of the first two types are almost entirely in terms of how they differ from

the rational type, whose rationality is self-evident to Weber and his readers on the basis of their

own knowledge of human goods (basic aspects of human wellbeing) and related practical truths.

See Finnis 1985, 170–72. Natural law theory, as one sees it practiced already in Aristotle's Ethics

and Politics, makes these valuations by the theorist overt and explicit (not hidden and

embarrassed), and subjects them to rational scrutiny and debate.

Raz, Dickson, and others accept that some such valuation is necessary, but deny that it is moral:

Dickson 2001. But once one begins to deal in reasons, can anything other than good reasons

count? If moral reason is nothing more than practical reason at full stretch, fully critical and

adequate as reason, moral reasons will have a decisive place in concept-formation in social

science including descriptive general theory of law. And this will not have the effect feared by

Hart, viz. of leaving the study of wicked laws or institutions to some other discipline: Hart 1961,

205; 1994, 209. On the contrary, they are a subject of lively attention in such a theory, precisely

because of their opposition to legal systems of a (substantively and procedurally) morally good

kind. Aristotle's Politics, though not methodologically flawless overall, is a primary witness to

this sort of clear-eyed acknowledgment and depiction of unreasonable social forms, practices and

institutions within a descriptive theory oriented by the moral judgments of the theorist.

Still, descriptive social theory is only a subordinate aspect of natural law theories of law. Their

primary focus is typically on identifying the conditions under which law is justified, both in the

sense in which law can and should be preferable to anarchy or tyranny or even benevolent “rule

of men,” and in the sense in which this or that legal principle, institution or rule can be judged to

be preferable to alternative reasons or purported reasons for action. As Green 2003 says:

Evaluative argument is, of course, central to the philosophy of law more generally. No legal

philosopher can be only a legal positivist. A complete theory of law requires also an account of

what kinds of things could possibly count as merits of law (must law be efficient or elegant as

well as just?); of what role law should play in adjudication (should valid law always be

applied?); of what claim law has on our obedience (is there a duty to obey?); and also of the

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pivotal questions of what laws we should have and whether we should have law at all. Legal

positivism does not aspire to answer these questions, though its claim that the existence and

content of law depends only on social facts does give them shape.

Might it not be better to say: no legal philosopher need, or should, be a legal positivist? For law's

dependence upon social facts is fully acknowledged, and also accounted for, in natural law

theories of law. And this is not a “concession” by natural law theorists, for their main positions

were clearly articulated by Aquinas, many centuries before legal positivism emerged with its

challenge to (what it took to be) natural law theory. Positivist critiques of natural law theory,

when they do not rest upon scepticism about the possibility of moral judgment, a scepticism

implicitly disavowed in the above passage, rest on misunderstanding of passages from the works

of natural law theorists. On such misunderstandings, see Finnis 1980, 23–55; Soper 1992.

Again: How could such fundamental questions as “Should we have law at all?” be “given shape”

by the positivist thesis that law's existence and content depends only on social facts? Does not

Green's claim invert the reasonable order of inquiry and reflection? Basic human needs and

circumstances powerfully suggest to people in virtually all times and places that they should

make and uphold some norms of the kind we call law, norms which will depend directly and for

the most part on social facts such as custom, authoritative rule-making, and adjudication. Legal

philosophy retraces and clarifies, critically, that elemental practical reasoning, somewhat as Hart

did in Hart 1961, where he constructs a descriptive-explanatory account of law (i.e., refines his

and our concept or understanding of law) by explaining how rules differ from habits, how

powers have different functions and social value from obligations and so are not aptly reducible

to obligations, and how “primary” rules for outlawing gross violence, theft and fraud need, by

reason of their lack of certainty in content and application and their immobility, to be

supplemented by “secondary” rules of recognition, adjudication and change, the remedial

supplementation that shifts a society into the domain and rule of law and legal system. May not

those elements in Hart's book be taken as an instance of natural law legal theory done in a

primarily descriptive (rather than primarily justificatory) mode, and with incomplete scrutiny of

the resources of practical reason, resources being drawn upon by the whole explanatory general

description of law? Does not Hart's description, despite its incompleteness, work as well as it

does precisely because it disinters some elementary justifications conceived and put to use by the

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people whose activities provide the material for the descriptions? Does he not share the deep

methodology of Aristotle and the natural law tradition (Finnis 2003b) in making his

identification of what law is (of “the concept of law”) depend upon his account of why law is a

reasonable response to common human needs?

None of this is to say that a sound legal theory of the kind explained in this entry need be called

“natural law theory.” Like all philosophy, it should be done by considering propositions, not

labels.

6. Other elements of natural law theory

Intended to be part of a comprehensive theory of practical reasons that are fit to direct us to the

common good of each of our communities and its members, any natural law theory of law brings

to bear on law all the theses proposed and defended in natural law theory's moral and political

parts and in a sound understanding of the human makeup and of the lasting characteristics of our

circumstances. So, besides the questions listed by Green as quoted in section 5 above, issues

such as the following three (see others in Finnis 2002) are treated by natural law theory as

integral to legal science, theory or philosophy.

6.1 Intention in action and utterance

Rules of law are propositions of practical reason, apt for being taken as directive in the

deliberations of law's individual subjects towards judgment, choice (decision), and action

(including chosen forbearance). So a sound theory of law will have an integrated and critical

understanding of the structure of chosen action, particularly of the relationships between the

intending of ends, the adoption of means, the dual character of almost all ends as also means, and

of almost all means as also ends, and the necessity and normal possibility of freely choosing

between options which embody or promise benefits and disadvantages incommensurable

(incompletely commensurable) (Finnis 1997) with the benefits and disadvantages of the

alternative options. Such an understanding will clarify the often somewhat crude accounts given

in criminal law dogmatics (case law and textbooks) of actus reus andmens rea, accounts which

often fail to distinguish been action as a physically or conventionally demarcated chunk of

behavior and action as the carrying out of the choice of an option, that is of a proposal shaped

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and thus given a privileged description in the deliberations of the acting subject. The difference

between intended or chosen means (or ends) and foreseeable or even fully foreseen effects

(“side-effects”), like the consequent difference between the moral and, presumptively, legal

standards applicable respectively to intended and not-intended effects, is psychologically and

morally real. But it is often distorted by a simplistic legal dogmatics too averse to the (very real)

risk that defendants will prevaricate about what they had in mind. What counts, and can often be

inferred despite prevarication, is the act-description under which the behavior chosen was

attractive to the defendant in his or her actual deliberations (as distinct from rationalizing act-

descriptions adopted to present that motivation in a better light).

6.2 Responsibility and punishment

Criminal responsibility (guilt) is primarily for acts and consequences intended by the offender.

Liability for negligence is relatively exceptional in modern criminal law, though the predominant

form of liability in modern law of compensation (“civil law”). (The duties and standards of care

used to attribute tortious/delictual/civil liability are in part straightforwardly moral and in part

conventional—in neither part are they securely source-based in the sense of sources given

unconditional primacy in legal positivism.)

The legal enunciation of rules of criminal law (mostly “prohibitions”) has as its primary goal the

elimination or at least discouraging of the specified kinds of action (or omission). In this phase of

the legal institution of criminal law and punishment, the goal can be called deterrence. The fact

that this goal works partly by enforcement and application of the threatened sanction in the event

of violation and conviction does not, however, entail that deterrence is the formative or even the

primary end of punishment. Indeed, the institution of punishment has its primary sense and

justification, not in deterrence, but in the restoration of that presumptively fair balance of

burdens and advantages which offenders upset, precisely in choosing to prefer their own

purposes and advantage to restraining their action so as to avoid violating the law. In preferring

that self-preferential option, offenders help themselves to an advantage over all who do restrain

themselves so as to respect the law. The offenders thereby upset the presumptively fair balance

of advantages and burdens between themselves and the law-abiding. The primary purpose of

punishment thus can reasonably be to restore that disturbed balance by depriving convicted

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offenders of their unfairly gained advantage—excess freedom of action—by imposing upon

them measures, punishments, whose precise purpose is to restrict their freedom of action,

whether by fines or imprisonment, proportionately to the degree to which they indulged their

self-preference. Punishment in that way seeks to ensure that, over the span of time running from

before the offence to the undergoing of the penalty, no one gains an advantage over fellow

citizens by offending.

Thus, while compensation in civil law (tort, delict, etc.) rectifies the disturbed balance of

advantages and burdens as between tortfeasors and their victims, punishment in criminal (penal)

law rectifies the relationship between offenders and all the law-abiding members of the

community. This retributive justification (general justifying aim) of punishment explains why

mental competence and mens rea are standard legal pre-conditions of criminal guilt and liability

to punishment. It is compatible with concurrent goals of deterrence, protection and reform, as

bonus side-effects of the retributive sentence, and as organizing aims of specific measures and

features e.g., of a prison regimen. It both presupposes and reinforces the reality that the political

community in question stands to offenders and law-abiding alike as our community.

6.3 Each legal system is of and for a particular political community

Examination of (i) how one legal system becomes independent of another by lawful processes

and (ii) how parts of a legal system (e.g., its constitution, or its rules for identifying office-

holders) are replaced by the unlawful processes of coup d'état or revolution demonstrates (see

Raz 1979, 100–109) that the identity of a subsisting legal system as one and the same system of

legal norms cannot be explained (or even coherently described) by an account which refers only

to the norms and their inter-relationships as validating norms and validated norms. The non-

momentary identity of a legal system is a function of the subsisting identity of the community

whose legal system it is. Legal theory is sub-alternated to the historical understanding (including

self-understanding) of a community and its members as being this community—

paradigmatically, this nation-state—rather than some accidental sequence or agglomeration of

persons and events, and this understanding must be in some substantial measure non-dependent

upon the legal norms that the community may succeed in constituting for itself and its members.

Doubtless the shared purpose of living together under a rule of law, and the shared memory of a

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shared acknowledgment or recognition of such laws as our laws, are normally important

components of such a shared understanding of political-communal and legal identity. But other

shared purposes, memories and dispositions to act must be also be substantially present, if the

phenomena of lawful independence and revolutionary constitutional change are to be as they are.

The not uncritical realism of natural law theory, evidenced in its approach to the realities of

intention as distinct from foresight and inattention, and of self-preferential choice and the

differing relationships between (i) offender and law-abiding and (ii) tortfeasor and victim,

similarly enables it to undertake a critical reflection, within legal theory broadly understood, on

the kinds of community capable of sustaining and being ordered in part by a legal system.

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