Natural Law Theory and Legal Positivism: Two Sides of the Same Practical Coin?

Author(s): Tim Kaye

Source: Journal of Law and Society , Autumn, 1987, Vol. 14, No. 3 (Autumn, 1987), pp.
303-320
Published by: Wiley on behalf of Cardiff University

Stable URL: https://www.jstor.org/stable/1410187

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JOURNAL OF LAW AND SOCIETY
VOLUME 14, NUMBER 3, AUTUMN 1987
0263-323X $3.00

Natural Law Theory and Legal Positivism:

Two Sides of the Same Practical Coin?

TIM KAYE*

INTRODUCTION

In their article "The Practical Difference between Natural

Legal Positivism",1 Deryck Beyleveld and Roger Browns
tained that if the continuing debate between legal positiv
lawyers is ever to get beyond misrepresentation and abuse, ju
develop a "theory of legal ideology".2 Only when such a
developed, they claim, shall we be in a position to know "h
arises and affects these [thoughts and acts]".3
As an interested observer, rather than someone actively
dispute between legal positivism and natural law,4 I view this
the debate's major protagonists as a very welcome develo
reasons. First, jurisprudence has too often been limited in
important issues by a tendency towards exclusively abstract ar

... we are left at the end not with a blueprint for legal and politic
conclusions are too vague for any real value choices, but with hints, n
better ourselves and the communities within which we live.5

It is high time jurisprudes began to explore the dialectic betw

practice.
Secondly, as Beyleveld and Brownsword have pointed ou
often been characterised by a tendency to misrepresent
Worse, there has also been an element of 'talking past' other
than addressing genuine disagreements, so that real deb
engaged. But an illumination of theory by means of pr
inevitably makes the former more concrete and explicit,
representation and wilful evasion of awkward criticism becom
Thirdly, this obsessive concern with abstract debate - o
opaque nature - leads, of necessity, to a shunning of sociolog
fear that legal philosophy be taken into the forbidden realm
attempt to synthesise the twin disciplines of philosophy and s

*Department of Law, University College, P. O. Box 78, C

Wales.

I should like to thank Dave Burnet for his comments on an earlier draft.

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thus surely overdue.6 And an attempt at an analysis of legal ideology at least
represents the putting of a jurisprudential toe in the sociological water. The
reader may judge the likelihood of a scalding from the following analysis.

METHODOLOGICAL DIFFICULTIES

There are, of course, enormous difficulties involved in atte

any theory of ideology, and I do not pretend that I have su
all the problems. Nevertheless, even in the somewhat schem
follows, I believe I can offer some guidance to others w
something of the ideologies behind the most familiar dispu
The first and probably most obvious problem to overcome
by the word 'ideology'. Of course, a full discussion of this t
the rehearsal of a debate as far from conclusion as is t
positivism and natural-law theory. However, the whole tone
Brownsword's article is one of great antipathy towards
and since, in any case, I doubt that any generally acceptable
vitiate my analysis, I shall sidestep the difficulty by found
upon their own definition of ideology as "a theory explorin
to have the ideas they do, how ideas relate to one another,
ideas bear on practical attitudes and actions".8
The second point to note is that we are concerned here not
ideologies of particular individuals, but with the ideolog
groups of individuals - natural lawyers and positivists.
therefore, is an outline of the lowest common denominator o
differentiates the one from the other. In fact, the deno
enough. For whilst natural lawyers believe that "law is the
legitimate power",9 legal positivists deny any necessary con
law and morality and instead assert that law is a set of p
have satisfied "tests having to do not with their conte
pedigrees or the manner in which they were adopted o
other words, a natural lawyer could recognise as law only t
satisfied certain ethical standards, whereas a positivist
law only those rules which emanate from a particular so
manner."1
It is, however, worthy of note that in many ways this cha
two concepts of law is simply a depiction of ideal-types wh
views of comparatively few legal theorists. This problem is
attempting the not inconsiderable task of identifying the m
group. In which camp, for example, is Dworkin to be billete
a natural lawyer? His view of law seems to be rather po
respects.12 Even calling Hart a positivist is not complete
since he concedes that his concept of law contains a "m
natural law".'3
Nevertheless, as Weber demonstrated, ideal-types can be a useful analytical
tool. So, having established the basis for the rival ideal-typical claims, a
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attempt can now be made to unravel the practical effects of each theory by
examining the legal ideologies that underpin them. I shall take each leg of
Beyleveld and Brownsword's definition in turn.

I. HOW PEOPLE COME TO HAVE THE IDEAS THEY DO

1. Legal Positivism
Legal positivism has a relatively short history. In fact, altho
Bentham was the movement's true founder, it was not until Joh
Province of Jurisprudence Determined that a systematic th
positivism was published.'" Its relatively late development is of f
importance, for it is the late eighteenth century that mark
industrial capitalism in Britain. And, in early capitalist soc
Colletti has explained:
... the individual appears as liberated from all social ties. He is integrated
citizen community, as in ancient times, nor into a particular corporate c
example, a trade guild), as in medieval times. In 'civil society' ... individu
from and independent of each other. Under such conditions, just as
independent of all others, so does the real nexus of mutual dependence (th
unity) become in turn independent of all individuals. This common intere
interest, renders itself independent of all interested parties and assu
existence; and such social unity established in separation from its membe
the hypostatized modern state."5

Developing capitalism is thus characterised by a high divisi

involving a new disparity between home and work, with ea
egoistically pursuing her or his own goals rather than having them
a larger corporate body or community. For these goals are
discussion in the public domain, but are simply a private co
individual. There is, for the first time, a clear division between 'p
'private life'. Everyone becomes a homo duplex, leading a sort of
existence with part of her or his life subject to public or politic
whilst the remainder is hidden from the public gaze by a cloak o
Moreover, as Colletti has pointed out, capitalist society is no
unprecedented dichotomy between economy and polity, which r
development of a relatively autonomous state to mediate rela
them. Division of labour is, therefore, not restricted to the produ
There are important dichotomies impinging on every sphere of
opposed to work, public versus private, economic as against
state in contradistinction to civil society. And these distinctions a
by the rule of law, which demands a division of labour betweeen
executive, and judiciary.
However, the range of activity of any of these organs of the st
circumscribed in early capitalist society. The plurality of aims an
society based on an individualistic ethic means that there can
consensus as to what constitutes both a rational and worthwhile human
objective. Therefore, if the state is to maintain an appearance of neutrality,

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interventionist policies must be rejected. The nineteenth-century politics of
laissez-faire can therefore be seen as an inevitable product of the new social
pluralism. For laissez-faire allows the individual to pursue her or his own
lights without paternal interference in favour of some supposedly higher goal.
The common law therefore became less interested in overtly political issues
of substantive justice and concentrated instead on questions of procedure
designed to maximise the freedom of action of each individual. The law of
contract, for example, committed itself simply to looking at matters of form in
order to determine whether or not to enforce an agreement. Provided that a
contract had been executed in accordance with the necessary procedures a
court would sanction it, however inequitable its terms. Unequal bargains
would not be set aside. As Blackburn J. put it in 1873, "the inadequacy of the
consideration is for the parties to consider at the time of making the
agreement, not for the Court when it is sought to be enforced."16 This notion
would have been quite anathema to eighteenth-century lawyers, for whom
"the law was inevitably and fundamentally concerned about the fairness of an
exchange".7 But in the nineteenth century contract became a body of formal
law concentrating on abstract rules and procedures, indifferent to the material
inequalities which it legitimated. Moral questions were no longer any concern
of the law, for this would be to impose a value-judgement upon a pluralistic
society where it must inevitably be contested.
Moreover, the law became so infused with the ideology of laissez-faire that
it not only reinforced the distinction between the political and the economic,
but also bolstered the twin dichotomies of public versus private and work
versus home. The contractual doctrine of intention to create legal relations
thus presumes that business transactions (in the absence of a suitably drafted
ouster clause) will be legally sanctioned, whilst domestic agreements will not
usually be legally enforced.'8 Nor can 'natural love and affection' be the basis
on which the law will give effect to an agreement.1'
Thus positivism originated in a society based on impersonal regulation of
human conduct according to apparently value-neutral rules and procedures
sanctioned by a state whose jurisdiction was severely restricted.

2. Natural Law Theory

Unlike legal positivism, versions of natural-law theory have existed for
thousands of years, dating from the ancient world. Again in contrast to legal
positivism, such variants have flourished in at least two analytically distinct
societies. But now, after somewhat of a period in the doldrums while
positivism has become the dominant legal doctrine, natural law theory has
begun to regain some of its lost ground.20 However, it would have been
remarkable indeed if natural law theory had not undergone any changes
during its existence. Indeed, it has been said that:
.. with 2,500 years of history it is not surprising that the question 'what is natural law?'
provokes so many different answers. The expression 'natural law' has continuity but this
does not means that the concept has remained static. It has had very different meanings
and has served entirely different purposes.2'

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But, in order to discover the origins of these changes and to develop
an analysis of the ideology of natural law, it is necessary first to outline the
basic features of the societies in which natural-law theory has been pre-
eminent.
Aristotle22 is credited with the first systematic exposition of this doctrine.
Like modern capitalism, the Greek society in which he lived was characterised
by the presence of a distinct entity which we would recognise as a 'state', but
the form of this entity was very different from the modern capitalist state. For,
to quote Colletti again, whilst the capitalist state dissociates itself from civil
society:

.. in ancient Greece the state and the community were identified within the poliO: there
was a substantial unity between people and state. The 'common interest', 'public affairs',
etc., coincided with the content of the citizens' real lives, and the citizens participated
directly in the city's decisions ('direct democracy'). There was no separation of public from
private.23

Ancient Greece and Rome were societies in which the modern dichotomies

of public/private, work/home, and politics/economics were simply non-

existent. There was no realm of life in which the classical state could not
legitimately intervene, provided that its actions did not flout the laws
nature. As a result, it administered a wide range of rules and procedures. Th
Justinian codes of Roman law are, perhaps, the best example of this. Howeve
classical law did not regulate all human conduct but merely that of a sm
minority of the populace, namely the citizens. The vast majority, the slaves,
had no rights at all, so that their conduct was regulated simply by the whim
their owners. As Aristotle wrote:

For that which can foresee by the exercise of mind is by nature intended to be lord and
master, and that which can with its body give effect to such foresight is a subject, and by
nature a slave .. 24

There was thus no attempt to preserve some kind of formal equality betwe
all human beings which is vital for the nineteenth-century doctrine of freed
of contract. Inequality was, in fact, entrenched through each individu
'natural' assumption of the status of either citizen or slave. However, statu
not the formal concept that contract is. It does not refer simply to one aspec
an individual's life, but is an all-inclusive concept which both determines on
total legal situation and governs one's whole position or role in life. To decl
a person's status was, therefore, to make an overtly political statement. Th
Aristotle wrote:

... the ruling class should be the owners of property, for they are citizens, and as citizen
a state should be in good circumstances; whereas mechanics or any other class which is no
a producer of virtue have no share in the state.25

Classical natural law theory therefore developed in a society where the law
far from shying away from moral and political issues, strove overtly
reinforce moral values and political distinctions. In other words, the ancien
world was based on a unitary, rather than a pluralist, conception of society
There was a prevailing consensus as to what constituted right and wro
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There was no question of each individual being allowed - still less encouraged
- to follow her or his own lights, because everyone was supposed to be
aspiring to the same goals: honour and virtue. Thus, the law was not
concerned to promote egoistic self-interest, but instead was designed to ensure
that, so far as possible, all citizens would lead honourable and virtuous lives.
That is, the law was directed towards the ends rather than the means of human
activity.
A similar consensual ideology was prevalent in medieval England. At that
time, however, the universal goal was not the achievement of honour and
virtue, but the adherence to Christian values. In fact, the Thomist version of
natural law theory, dominant in the Middle Ages, prevailed in a very different
kind of society. Colletti again:

In medieval times there was if possible even less separation of state from society [than in
classical society], of political from economic life. The medieval spirit could be expressed,
Marx says, as one where 'the classes of civil society were identical with the Estates in the
political sense, because civil society was political society; because the organic principle of
civil society was the principle of the State'. Politics adhered so closely to the economic
structure that socio-economic distinctions (serf and lord) were also political distinctions
(subject and sovereign).26

However, the 'socio-economic distinctions' were not restricted to the two-

fold classification of the ancient world. In medieval times there was an
immutable hierarchy of statuses. The king stood at the top, and below
were the princes, then the lords, the clergy, freemen, and so on, down t
serfs at the bottom. Feudal society was thus founded upon a veritable gam
of entrenched inequalities. Formal rules and procedures, which apply an e
standard to everyone, could therefore play only a very limited role.
codification of Roman law carried out under the Emperor Justinian I
development which could not possibly have been parallelled in the M
Ages. In such a stratified society a more instrumentalist approach had to
adopted.
In other words, since medieval society clearly embodied a particular set
of value-judgements, the legal system could not itself be value-neutral.
If it were to support the prevailing social system, the law had to maintain
the pre-existing infrastructure of inequality. The law, therefore, embraced
the very values which underlay the differentiation by social status. As a
result, the state was quite uninhibited in its power to effect what were
perceived to be the right results, that is, those in accordance with God's
will. A realm of private interests upon which the state would not impinge
was quite unknown in medieval England. Moreover, naked power played a
far greater role as a mode of social control. Insofar as legal forms,
such as contract, were adopted and applied, "the substantive fairness
of the agreement or relation was subject to scrutiny by a lay jury apply-
ing community standards of justice."27 Formal legal rules were thus
regulated according to blatantly value-laden criteria. A specific conception
of morality, based on Christianity, was actually embedded within the law
itself.

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 II. HOW IDEAS RELATE TO ONE ANOTHER

1. Legal Positivism
Having earlier described the type of society in which legal
originated, it is now time to explore the ramifications of such a
as regards the content of this theory. In fact, just as early c
characterised by a series of dichotomies, legal positivism is d
process of abstraction which mirrors these larger social developm
itself above and apart from civil society, the state was able to
individualist ethic by appearing neutral as between compet
interests: this achievement was, however, attained through the r
of the law away from concerns of:

?. material or substantive justice, which refers to the content of so

[towards] pure or formal justice, which refers to the impartial and hence fai
rules whatever their content.28

Thus, Denning J. had to seek legitimacy for his invention of equitable

estoppel in Central London Property Trust Ltd. v. High Trees House Ltd.29 by
claiming that it was the rationale for the long-forgotten decisions in Hughes v.
Metropolitan Railway Co.30 and Birmingham & District Land Co. v. London &
North Western Railway Co..31 For there is no room in legal positivism for an
overtly purposive approach to legal decision-making. Lord Mansfield's
attempts almost two hundred years earlier to achieve the same result as
Denning J. - that is, the mitigation of the harsh effects of the doctrine of
consideration in the law of contract - were defeated precisely because he had
sought to make judgments according to moral principles rather than formal
legal rules.32 Lord Denning's own sorties into the realms of overtly
instrumental reasoning have also aroused open hostility from his colleagues
on the bench.33 Lord Radcliffe expressed the dominant positivist view on this
matter when he said:

The judge who shows his hand, who advertises what he is about, may indeed show that his
is a strong spirit, unfettered by the past; but I doubt very much whether he is not doing
more harm to general confidence in the law as a constant, safe in the hands ofjudges, than
he is doing to the law's credit as a set of rules nicely attuned to the sentiment of the day.34

Legal positivism thus requires that the law refrain from the open promotion
of particular goals (whatever they may be) and instead seek to provide the
means for the pursuit and achievement of the widest possible range of human
objectives. As Campbell has explained, this positivist analysis "has the
advantage of expressing the neutrality of the law . . . as between different
policy objectives, the law being a form of mechanism which can be used for an
endless variety of social ends".35
Legal positivism is, therefore, a characterisation of law which has the
concept of a rule as its central concern,36 for without it "we cannot hope to
elucidate even the most elementary forms of law".37 To put this another way,
legal positivism involves an adherence to 'legalism', that is "the process of
subjecting human behaviour to the governance of rules".38 However, it is not
for lawyers to question the validity of the rules to be applied because,
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according to the positivist view: "The science of jurisprudence is concerned
with positive laws, or with laws strictly so called, as considered without regard
to their goodness or badness.""39
In other words, legal positivism necessitates a division of labour in
intellectual activity to mirror that in the production process. Just as the
discipline of political economy sired twins - politics and economics - so
jurisprudence gave birth both to a narrow legal theory concerned purely with
doctrinal analysis and to a wholly separate body of moral discourse. While the
division between state and civil society grew, positivism operated in an
analogous manner to abstract law from politics and morality, so that the law
did not become embroiled in controversy over competing social, political, and
moral values. Domestic arrangements, for example, were seen as subject
purely to social mores and were, therefore, unsuitable as a topic for legal
adjudication.40 The law was thus" 'purified' - to use Kelsen's terminology -
of ethical, social scientific or historical considerations".41
This process was, of course, essential if the pluralist conception of society
was to have any substance. For whilst there cannot, by definition, be
agreement in such a society on what constitutes the value or justice of a
particular rule, it can be objectively determined whether or not the rule has
been accurately applied. Thus, legal positivism involves a commitment to
"rule-following [as] an end in itself'"42 and not simply as a means to an end.
The practical effects of this will be explored in the third section below.

2. Natural Law Theory

As Lloyd and Freeman have written:
.. the essence of natural law may be said to lie in the constant assertion that there are
objective moral principles which depend upon the nature of the universe and which can be
discovered by reason.43

Thus, St. Thomas Aquinas wrote: "[Law] is nothing else than a rational
ordering of things which concern the common good."44 Or, as Cicero put it:
"True law is right reason in agreement with Nature."45
However, natural lawyers seem unable to agree on what values are
necessarily entailed by this application of reason. As Beyleveld and
Brownsword have pointed out: "In principle, natural law theory may adopt
any ethics."'46 Yet, because they hold that the positivistic enterprise of ridding
law of all traces of value-judgements is both impossible and undesirable,
natural lawyers are generally quite explicit as to which values they believe are
inherent in the concept of law. This is to be expected, since natural law theory
has been dominant in societies characterised not so much by the following of
rules as by an explicit recognition of particular value-judgements. The import-
ance of the concept of status in those societies is conclusive evidence of this.
Medieval Thomist natural law theory, for example, involved an obvious
concern to maintain the rule of the powerful. Thus, the Roman Catholic
church did not even consider placing procedural restrictions on the conduct of
the Holy Roman Inquisition, for the cause was paramount:
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 Reason has power to move to action from the will, as we have shown already: for
reason enjoins all that is necessary to some end, in virtue of the fact that that end is
desired.47

This is obviously a highly instrumentalist view of law: the ends justify the
means. So Aquinas was also able to say:
All people, indeed, realize that it is right and true to act according to reason. And
from this principle we may deduce as an immediate conclusion that debts must be
repaid. This conclusion holds in the majority of cases. But it could happen in
some particular case that it would be injurious, and therefore irrational, to repay
a debt; if, for instance, the money repaid were used to make war against one's own
country.48

A more legalistic theory would maintain that the debt should be repaid
irrespective of the uses to which the creditor might put the money.
The dominant natural law theory in feudal times was, of course, highly
reactionary - used, as it was, to bolster absolutism. However, the hegemony of
this doctrine meant that it also extended to would-be radicals and revolution-
aries, who employed natural law arguments to justify their own causes and
beliefs.49

This is the sort of evidence which legal positivists have in mind when they
condemn natural law theorists for being either "radical revolutionar[ies] or
unregenerate reactionar[ies]".50 But this charge is highly misleading, since it
treats natural law theory as a completely homogeneous approach to the
concept of law. In fact, this criticism is meaningful only insofar as it relates to
the medieval variant.
The Stoic doctrine involves a rather more legalistic approach. Originating
as it did in a society with a legal system considerably more sophisticated than
that which existed in medieval Europe, it would have been remarkable for this
theory not to allow a somewhat greater role to abstract forms and
procedures.51
The clearest example of this legalistic view is Socrates's famous explanation
of his belief that he had to submit to the verdict and sentence of the court
which tried him even though his conviction was unjust. For if Socrates had
adhered to a medieval version of natural law theory, he would have been able
to say that since the trial had resulted in injustice his conviction and sentence
were illegal, so that he would have been morally and legally justified - perhaps
even under a duty - in trying to escape. For, according to Aquinas: "Human
law has the quality of law only in so far as it proceeds according to right
reason."52 In other words, medieval natural law theory held that the ends
justified the means.
However, Socrates believed that since the proper procedures had been
followed - he had been convicted by a court which had been properly
convened in accordance with the positive law of the land - he was morally
bound by the verdict, even though both that law and the verdict itself were
unjust. Thus, the Socratic ideal of legal fidelity involved a somewhat more
legalistic type of natural law theory, which is patently neither revolutionary
nor reactionary. It merely preserves the status quo.

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 III. HOW ABSTRACT IDEAS BEAR ON PRACTICAL
ATTITUDES AND ACTION

1. Legal Positivism
As we saw earlier, legal positivism is concerned to see that the
impartial as between the variety of interests of private individual
basis of positivism is legalism, which is such an apparently abstract
doctrine that legal positivists claim that it does not, of itself, neces
particular practical consequences: such results are always conti
other factors. However, as Baker has argued:
... no structure is value-neutral; all social structures affect both what peopl
how they interact; that is, affect both end-results and processes. Any struc
tastes and distributions, organizes the processes of realizing values, an
concept of value and of man.53

In other words, the supposed ideological neutrality of legal p

merely a device to legitimate its own internal ideology. Legal posit
be an essentially formal doctrine, but any 'form' must have a 'con
one cannot exist without the other. So the claim that no particular
consequences are implied in legal positivism can be debunked in an analogous
manner, for the apparent neutrality must mask a real desire to achieve well-
defined political goals. To discover what these goals are we must explore in
greater depth the notion of legalism itself.
A succinct description of legalism has been provided by Tom Campbell:
The prime values of legalism are adherence to, and the impartial application of, existing
authoritative societal rules. Legalism is opposed to the exercise of discretion in the
following and applying of rules, actions based on the calculation of consequences, ad hoc
adaptations of rules to suit the peculiarities of individuals in situations not covered by the
rules, and the creation of new rules to judge the propriety of past behaviour.54

Legalism is clearly a rule-based ethics. But since legal positivism operates a

'pedigree test'55 in order to determine what is law, the source of these rules
must obviously be an historical one, be it custom, case or legislation. Present
and future conduct is thus to be regulated by past activity. In other words,
legal positivism is basically a backward-looking theory. This is emphasised -
as far as the judiciary is concerned - by the importance of the doctrine of
precedent. A recent example is afforded by the case of Elliott v. C.56 where
Robert Goff L.J., despite abhoring the harsh results of the House of Lords'
decisions in R. v. Caldwell57 and R. v. Lawrences8 on the meaning of
'recklessness' for the purposes of the Criminal Damage Act 1971, nevertheless
concluded "anxiously"''59 that he was bound to apply them as they stood. To
have determined the instant case otherwise would have been to base his
judgment on consequentialist arguments - something anathema to lega
as Campbell's expose has made clear.
But if instrumental reasoning is to be disallowed, legal positivism canno
compatible with the values of most people who call themselves socialists,
with many of those who prefer the appellations 'liberal' or 'social-democr
Indeed, according to Campbell, a "purposive outlook" is one of the
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"hallmarks of socialism".60 For socialists and many adherents to the other
two political viewpoints wish to see society orientated towards particular
ends, such as 'equality' or 'equality of opportunity'. A theory of law which
makes it impermissible to take these goals into account must, therefore, be
rejected by those on the left (and many in the centre) of British politics.6'
Indeed, if legal positivism is a theory dependent on historical sources of law,
its political bias clearly must be towards the right of the political spectrum.
Whether this makes it thoroughly reactionary or simply conservative will
depend on how far back it is possible to go to find rules which are still relevant
to modern times. Custom may be only of passing significance today, but there
is a lot of old statutory and common law which can be revived by willing
reactionary activity. Shaw v. D.P.P.62 is a particularly notorious example.
However, the implementation of relatively recent legislation or case-law will
mean that a positivist theory of law will take on a rather more conservative
appearance.
Moreover, legal positivism, in its adherence to formal justice, has effe
erected a strong presumption against legal reform:
This is because rule-change is bound to give rise to formal injustice as between t
are treated under the first rule and those who are treated under the reformed rule

If the new rule is more lenient, those dealt with under the earlier rule w
unfair discrimination. On the other hand, if the later rule is more stric
coming within its ambit will be unfairly prejudiced. As Campbell has n
"formal justice is in itself a conservative ideal".64
Furthermore, legal positivism must inevitably buttress the legitimat
perpetuation of oppression and inequality. For human beings are, b
very nature, different from each other and, as Marx has pointed out,
would not be different individuals if they were not unequal".65 T
application of the same rules to everyone must therefore maintain pre-e
inequalities. The slogan 'equality before the law' therefore helps both t
and recreate substantive material injustice. Of course, this is not to say
enforcement of every rule in every case will be oppressive, but it is c
true that a body of rules operated in a positivistic manner must
systematic discrimination and exploitation.

2. Natural Law Theory

The view that a natural law theorist must be either a "radical revolutio
unregenerate reactionary"''66 was seen above to be a criticism which co
levelled with justification not at the Stoics, but only at medieval philo
of law. But, as Lloyd and Freeman have pointed out: "Medieval and
notions of natural law have little in common."''6 Indeed, Lon Fulle
figure in the recent rejuvenation of natural law theory, explicitly reje
seventeenth and eighteenth century Christian doctrines of natural law
the same time, however, he openly declared his affinity with the writ
Aristotle.69 But modern natural lawyers, like Fuller with his "In
Morality of Law",70 have emphasised the importance of the forma
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legal procedure to a significantly greater extent. It is quite plain that the moral
basis of modern natural law theory is "the enterprise of subjecting human
conduct to the governance of rules".1 In fact, Beyleveld and Brownsword
have declared that this is one of the "assumptions which our sketched
argument shares with H. L. A. Hart and other positivists who have developed
his position, for example, Joseph Raz and Neil MacCormick".72
But this means that underlying modern natural law theory is nothing other
than a devotion to legalism. For even though his criteria for assessing the legal
validity of particular positive laws included a vague reference to morality,
Fuller subordinated his concern with "reciprocity of expectations between
lawgiver and subject"'3 to an analysis of the formal or "processual"74 aspects
of natural law theory.75 And, although he denied that this led to an emphasis
on means rather than ends,76 he did concede:

As a convenient (though not wholly satisfactory) way of describing the distinction being
taken we may speak of a procedural, as distinguished from a substantive natural law.
What I have called the internal morality of law is in this sense a procedural version of
natural law .... The term 'procedural' is... broadly appropriate as indicating that we are
concerned, not with the substantive aims of legal rules, but with the ways in which a system
of rules for governing human conduct must be constructed and administered if it is to be
efficacious.... 77

But if the substantive aims of legal rules are irrelevant, a modern concep
natural law must be just as repugnant to socialists (and many liberals
social-democrats) as is positivism, since consequentialist arguments will car
no weight.78 Even worse, a 'procedural natural law' will, in some insta
buttress immorality, and thus be self-contradictory in the same way that
adoption of'rule utilitarianism' will, on occasion, mean the non-maximisati
of utility. For example, suppose thata natural lawyer believes that everyon
entitled to 'equal concern and respect'."79 An old-fashioned, instrumentali
natural law approach would simply hold to be legal whatever measur
helped to effect that end. However, modern natural lawyers, perhaps min
of criticism which suggests that this is too abstract a standard to help us in
day-to-day living,80 base their concept of law not on the 'first-order' rule
everyone should strive to achieve the ultimate goal, but on a set of derive
'second-order' rules. Such a rule deriving from the goal of'equal concern a
respect' may state that everyone is entitled to freedom of speech. However,
means that any fascist or racist will also be allowed to enjoy this liber
something which many people would find both abhorent and, indee
immoral.
Some natural lawyers may object that this problem could be avoided by
improving the drafting of the rule granting everyone freedom of speech, so as
to deny a platform to racists and fascists. In fact, though, the only way to
accomplish this for every second order rule is to adopt the first order rule itself.
But this would be to succumb to the very instrumentalism which modern
natural lawyers are so keen to reject. In other words, the modern, legalistic
concept of natural law inevitably places the second order rules above the
ultimate goal. But if they are to carry so much weight such rules (and
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adherence to them) must be transformed from the means by which moral and/
or social goals are achieved into the very objectives themselves. The morality
of such adherence becomes contingent rather than necessary. But this is
precisely the product of legal positivism.
Thus, if an (immoral) positive rule were enacteds81 which stated that the
families of people with long hair would be executed, Beyleveld and
Brownsword have opined not that there would be a moral obligation on
everyone to thwart the rule and seek its repeal, but that those with long hair
would be under a moral obligation to get it cut.82 Beyleveld and Brownsword
justify this apparent perversion of natural law theory with the declaration that
"not all moral obligations to comply with rules hinge on legal validity".83 Yet
this means that their concept of law, supposedly based on moral considera-
tions, actually calls for the populace to obey and uphold a highly oppressive
law. Beyleveld and Brownsword even go so far as to say that when a rule meets
none of the lawyer's conditions for legal validity there may still be a moral
obligation to obey,84 and they reject the view that natural law theory means
that "there can never be a moral obligation to comply with a legally invalid
rule"."8 This is quite startling. On this basis the Nazis could claim obedience
and support from natural lawyers for many of their immoral enactments.
Fuller was quite justified in says that "over a wide range of issues, the law's
internal morality is indifferent towards the substantive aims of law and is
ready to serve a variety of such aims with equal efficacy."'86
Indeed, it is only when second order rules conflict that modern natural
lawyers can have recourse to the ultimate moral goal. Thus, to continue our
earlier example, if a racist started holding forth on private property, another
second order rule protecting peaceful enjoyment of one's own property could
be invoked, and the conflict between the two rules would be resolved by
reference to the basic moral standard itself. This is precisely the scenario of
Hercules and a 'Hard Case', where a natural lawyer is quite free to employ
arguments of pure principle (just as Hercules himself can87) without having to
dress them up in some other guise in order to gain acceptance in legal circles
(which would necessarily be the course of action for a legal positivist).
It is, therefore, difficult to quarrel with Shklar, who has pointed out that the
whole dispute:

.. is essentially a family quarrel among legalists .... The natural lawyer and the legal
positivist agree about the necessity of following rules; they disagree about what to do when
a conflict between rules occurs.88

In other words, they disagree only when facing a Hard Case. This may mean
that natural law theory is more suited to those liberals who, while generally
happy with the status quo, wish to see society adopt a hitherto unaccepted
principle - for example, Dworkin and positive discrimination - than is legal
positivism. But this approach to a Hard Case will not be enough to convince
the liberals, social-democrats and socialists discussed earlier because it still
leaves the second order rules to determine the outcome of all the 'Easy Cases' -
that is, those where the rules are unequivocal - regardless of the consequences.

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 Even John Finnis, whose Natural Law and Natural Rights represents the
boldest attempt yet to spell out the natural lawyer's substantive commitment
to justice, cannot avoid the trap of converting rules from means into ends. For
although he identifies seven 'basic goods' of human life,89 Finnis believes that
law tends90 to achieve them because it:
.. brings definition, clarity and thus predictability into human interactions, by way of a
system of rules and institutions so interrelated that rules define, constitute, and regulate
the institutions, while institutions create and administer the rules, and settle questions
about their existence, scope, applicability, and operation.91

This statement is strikingly similar to Hart's justification of the need for law
to be a union of primary and secondary rules.92 And Finnis's following
paragraph contains a passage which could have come straight out of Raz's
Authority of Law:

The primary legal method of showing that a rule is valid is to show (i) that there was at
some past time, t, an act... which according to the rules in force at t, amounted to a valid
and therefore operative act of rule-creation, and (ii) that since t, the rule thus created has

not determined . . . according to the rules of repeal in force at times t2, t3 ? 93

But if this is the modern natural lawyer's test of legal validity, the concept of
law of which it is part must be just as backward-looking (with all that entails)
as is that of legal positivism. Indeed, Finnis goes on to say:

... we can say that legal thinking (i.e. the law) brings what precision and predictability it
can into the order of human interactions by a special technique: the treating of... past acts
... as giving, now, sufficient and exclusionary reason for acting in a way then 'provided
for' .94

In practice, therefore, modern natural law theory must be almost as

restricted as legal positivism in the range of political viewpoints which it can
encompass. Thus, although Fuller allowed that his theory may efficaceously
implement a variety of ethics, nevertheless he stressed:

... a recognition that the internal morality of law may support and give efficacy to a wide
variety of substantive aims should not lead us into believing that any substantive aim may
be adopted without compromise of legality.95

Most socialists, many liberals and many social-democrats will, therefore,

find little to attract them in modern natural law theory. Indeed, this doctrine
must tend towards96 a short political continuum which runs from con-
servatism to what I propose to call 'evolutionism' - a term intended to
embrace a number of political philosophies, all of which are interested in
effecting only gradual social change, albeit in different directions. Con-
servatism is bolstered by the simple application of (historically determined)
rules in easy cases. Evolutionism is supported by a willingness to employ
moral arguments when such rules do not yield a clear decision (that is,
when there is a Hard Case). Thus, natural law theory is well suited solely
to the politics of those basically happy with the status quo, or who wish
it to be subject merely to quantitative, rather than qualitative, social
change.

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 CONCLUSION

We have now seen that the range of politics which modern n

and legal positivism encompass is relatively narrow in i
proponents of either view are to be found in the political m
legalistic culture - one that puts rule-following above t
individual needs and desires - is quite repugnant to sociali
Both sets of theorists will, therefore, tend97 to presum
compliance with the rules of the powerful. This is really to
the legalistic ethos of both theories inevitably make th
conservatism and preservation rather than change. A rule
dynamic, concept.
Moreover, theorists in both camps are basically academ
relatively exalted status in a (highly legalistic) society and w
unlikely to experience physical or financial hardship. In shor
reason to attempt substantial social change because of t
interests. Thus will their theories tend towards a legalism
preserves rather than innovates.
Furthermore, philosophers of both points of view mix
other's company, whether daily at work or at regular confere
there is, after all, only a small circle ofjurisprudes, most of w
same journals, there is a natural tendency to seek agreem
matters. The real enmity and invective is, therefore, save
argument, where differences can be aired safely without jeo
relationships.
The question then arises as to why there has been so much in
debate. Clearly, the dominant legal theory for the past two hu
has been a positivistic one. However, the development of
together with the general intervention of the legislature into
has meant that society has, to some extent, moved away fro
century origins. The dominance of contract as the basic
organisation has been challenged by the importance in m
society of a new concept of status.99 Historically, for rea
outlined above, status has been associated with doctrines of n
Secondly, as the economy staggers from recession to recess
tensions are created that the state is increasingly forced to in
the side of the powerful. The 1984-85 miners' strike and the
Toxteth, Brixton, and elsewhere all provide examples of t
The state's veil of neutrality is gradually being lifted and, co
law's underlying values are becoming more explicit. Competin
can no longer be stigmatised as 'mere ideology'. It is now pos
a meaningful debate as to what values are, and should be
legal system. But, since legal positivism serves to deny that
any relevance, many philosophers have reverted to an exp
theory of law. Natural law theory, albeit in a new legalist
description. The result, as we have seen, is an extremely positi
theory.

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 Moreover, a similar development has taken place with respect to legal
positivism, which has actually begun to incorporate some explicit value-
judgements. No longer does Austin's command theory of law hold sway.
Nowadays it is universally disparaged by positivists who, following Hart,
point out that it elevates into law a gunman's order backed by threats.100
Instead, it is now accepted that there is a "minimum content of natural
law".o101
It therefore appears that the two theories are rapidly converging upon each
other. However, it is not really the theories as such which have become almost
indistinguishable: it is the theorists who propound them. The ideal-types of
legal positivism and natural law are as far apart as ever. But no modern
theorist actually adheres to an ideal-typical viewpoint. While the ideal-types
continue to be 'compromised' in this manner the practical effects of the two
theories will remain remarkably similar.

NOTES AND REFERENCES

(1985) 5 Oxford J. Legal Studies p. 1.

2 Id.,p. 4.
Id., p. 30.
4 I would class myself as one of the "Marxists who ... generally claim to have their own
special position which cannot be classified as positivist or natural law theory" (id., p. 24).
For an elaboration of such a position see E. Pashukanis, Law and Marxism (1978) and
I. Balbus, "Commodity Form and Legal Form; an essay on the 'Relative Autonomy' of the
Law" (1977) 11 Law & Society Rev. pp. 571-88.
5 Lord Lloyd of Hampstead and M. D. A. Freeman, Introduction to Jurisprudence (5th ed.
1985) p. 142. The original remark is a criticism of Finnis, but it appears to me to be equally
applicable to many other writers in this field.
6 Roger Brownsword has already made it clear that this is also his view. See his review of
D. Lyons, Ethics and the Rule of Law (1984) in (1984) 11 J. Law and Society p. 265. See also,
R. Cotterrell (1983) 46 Modern Law Rev. p. 681 at pp. 696-7 and, more hesitantly,
N. MacCormick, "Challenging Sociological Definitions" (1977) 4 Brit. J. Law and Society
p. 87.
7 Op. cit., n. 1, p. 3.
8 Op. cit.,n. 1, p. 4, n. 9.
9 Beyleveld and Brownsword, "Law as a Moral Judgment vs. Law as the Rules of the
Powerful" (1983) 23 Am. J. Jurisprudence p. 79 at p. 82.
1o R. Dworkin, Taking Rights Seriously (1978) p. 17.
11 See J. Raz, The Authority of Law (1979) pp. 45-52; J. Austin, Lectures on Jurisprudence (4th
ed. 1976; ed. Campbell) p. 225; H. Hart, The Concept of Law (1961) chap. 5.
12 See his Natural Law and Natural Rights (1980) especially p. 365.
13 Op. cit., n. 11, pp. 189-95.
14 The first edition of Bentham's manuscripts on law (now known as Of Laws in General) was
not published until 1945 under the title The Limits ofJurisprudence Defined.
15 Preface to K. Marx, Early Writings (trans. R. Livingstone and G. Benton, 1975) at p. 34.
16 Bolton v. Madden (1873) 9 Q.B. 55, at p. 57.
17 P. Atiyah, The Rise and Fall of Freedom of Contract (1979) p. 168.
18 Compare Rose & Frank Co. v. J. R. Crompton Bros. [1924] All E.R. 245 with Balfour v.
Balfour [1918-19] All E.R. 860.
19 See Bret v. J.S. (1600) Cro. Eliz. 756.
20 See L. Fuller, The Morality of Law (revised ed. 1969); A. Gerwith Reason and Morality
(1978); Finnis, op. cit., n. 12; Beyleveld and Brownsword, Law as a Moral Judgment (1986).

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21 Lloyd and Freeman, op. cit., n. 5, p. 92.
22 See The Physics (trans. W. Ross, 1950) chap. 8.
23 Op. cit., n. 15, p. 33.
24 Selections (trans. W. Ross, 1928) pp. 285-6.
25 Id., p. 314.
26 Op. cit., n. 15, p. 34.
27 P. Gabel and J. Feinman, "Contract Law as Ideology" in D. Kairys (ed.), The Politics of
Law (1982) p. 174.
28 T. Campbell, The Left and Rights (1983) p. 38.
29 [1947] K.B. 130.
30 (1877) 2 App. Cas. 439.
31 (1888) 40 Ch.D. 268.
32 See, for example, Pillans v. Van Mierop (1765) 3. Burr. 1663, overruled by Rann v. Hughes
(1778) 7 T.R. 350.
33 See, for example, Liverpool City Council v. Irwin [1976] 2 All E.R. 39.
34 Not in Feather Beds (1968) p. 273.
35 Op. cit., n. 28, p. 39.
36 Whether as a command - see Austin, op. cit., n. 11, p. 86 - or as the union of primary and
secondary rules- see Hart, op. cit., n. 11, p. 96. See also Raz, op. cit., n. 11; N. MacCormick,
Legal Reasoning and Legal Theory (1978); and R. Sartorious, "Hart's Concept of Law" in
R. Summers (ed.), More Essays in Legal Philosophy (1968).
37 Hart, op. cit., n. I1, p. 78.
38 Campbell, op. cit.,n. 28, p. 14.
39 Austin, op. cit., n. 11, p. 176.
40 Supra, n. 18.
41 R. Cotterrell, The Sociology of Law (1984) p. 28.
42 Campbell, op. cit., n. 28, p. 33.
43 Op. cit., n. 5, p. 93.
44 Selected Political Writings (trans. J. Dawson, 1970) p. 113.
45 De Republica III, xxii, 33.
46 Op. cit., n. 1, p. 4.
47 Aquinas, op. cit., n. 44, p. 111.
48 Id., p. 125.
49 See T. Paine, Rights of Man (1982); G. Winstanley, The Law of Freedom, and other writings
(1973).
50 J. Ladd, Introduction to I. Kant, The Metaphysical Elements of Justice (1965) p. xxix,
quoted by Beyleveld and Brownsword, op. cit., n. 1, p.2.
51 Of course, just because a legal system is sophisticated, it does not mean necessarily that the
society in which it operates is also sophisticated. A society in which the legal form has
'withered away' may well be a great deal more sophisticated than any with a developed legal
system.
52 Op. cit., n. 44, p. 121.
53 C. Edwin Baker, "The Ideology of the Economic Analysis of Law" (1975) 5 Phil. & Public
Affairs pp. 3-48 at p. 37.
54 Op. cit., n. 28, p. 36.
55 Supra, n. 10.
56 [1983] 2 All E.R. 1005.
57 [1982] A.C. 341.
S [1981] 1 All E.R. 974.
59 [1983] 2 All E.R. 1005 at 1012.
60 Op. cit., n. 28, p. 36.
61 In a famous passage defending 'the rule of law', E. P. Thompson may be thought to have
mounted a socialist defence of legal positivism. (See Whigs and Hunters (1977) pp. 258-69.)
However, a closer reading reveals that Thompson was employing an eighteenth-century
conception of the 'rule of law', whereby rules promulgated by the state can be afforded

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 legitimacy only when they satisfy certain substantive criteria. This is clearly not a positivistic
but a natural law approach and exemplifies, rather than contradicts, Campbell's point that
socialists typically adopt a "purposive outlook". For further discussion of Thompson's
stance, see especially B. Fine, Democracy and the Rule of Law (1984) pp. 173-4.
62 [1961] 2 All E.R. 446.
63 Campbell, op. cit., n. 28, p. 40.
64 Id.,p.40.
65 "Critique of the Gotha Programme" in The First International and After (ed. D. Fernbach,
1974) p. 347.
66 Supra, n. 34.
67 Op. cit., n. 5, p. 93.
68 Anatomy ofthe Law (1968) p. 116.
69 Op. cit., n. 20, p. 94.
70 Id.
71 Id.,p.96.
72 Op. cit., n. 20. p. 100, n. 43.
73 Op. cit., n. 20, p. 209.
7 R. Summers, Lon L. Fuller (1984) p. 74.
7 Id., chap. 6, especially p. 74.
76 See "A Rejoinder to Professor Nagel" (1958) 3 Natural Law Forum p. 83 at p. 84.
77 Op. cit., n. 20, pp. 96-9. And see "Means and Ends" in The Principles of Social Order
K. Winston, 1981). See also Summers, op. cit., n. 74, chap. 6.
7s Supra,n.60.
79 Dworkin, op. cit., n. 10, pp. 272-8.
80so Supra, n. 5.
81 That is, a rule which would be legally invalid for most natural lawyers whilst valid for a legal
positivist. The exception in the natural law camp is Finnis, who claims that "a theory of
natural law need not have as its principal concern, either theoretical or pedagogical, the
affirmation that 'unjust laws are not law'."(op. cit., n. 12, p. 351)
82 Op. cit.,n. 1,p. 7.
83 Id.,p. ll.
84 Id., pp. 6-7.
85 Id.,p. 10.
86 Op. cit., n. 20, p. 153.
87 Dworkin, op. cit., n. 10, chap. 4.
88 Legalism (1964) p. 106.
89 Op. cit., n. 12, pp. 86-90.
90 Finnis does admit of possibilities where the "values to be secured . . . are best served by
departing temporarily, but perhaps drastically, from the law and cosntitution", but refuses
to identify such occasions.(id., p. 275)
91 Id.,p.268.
92 Op. cit., n. 11, pp. 89-96.
93 Op. cit., n. 12, p. 268. Compare Raz, op. cit., n. 11, pp. 45-52.
94 Id., p. 269.
9s Op. cit., n. 20, p. 153.
96 That is, Beyleveld and Brownsword's "weaker claim" (op. cit., n. 1, p. 2, n. 8): "particular
concepts of law tend towards particular (different) practical attitudes".
97 Supra,n.95.
98 It is interesting to note that four of the debate's major protagonists - Hart, MacCormick,
Finnis and Raz - are all Oxford (or ex-Oxford) academics whose main contributions in the
field have been published by the Clarendon Press: the first three have books in the same
Clarendon Law Series.
99 See M. Rehbinder, "Status, Contract and the Welfare State" (1971) 23 Stanford Law Rev
pp. 941-955.
100 Op. cit., n. 11,pp. 18-20.
1O1 Supra, n. 13.

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