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Natural Law
The term “natural law” is ambiguous. It refers to a type of moral theory, as well as to a type of le-
gal theory, but the core claims of the two kinds of theory are logically independent. It does not
refer to the laws of nature, the laws that science aims to describe. According to natural law
moral theory, the moral standards that govern human behavior are, in some sense, objectively
derived from the nature of human beings and the nature of the world. While being logically in-
dependent of natural law legal theory, the two theories intersect. However, the majority of the
article will focus on natural law legal theory.

According to natural law legal theory, the authority of legal standards necessarily derives, at
least in part, from considerations having to do with the moral merit of those standards. There
are a number of different kinds of natural law legal theories, differing from each other with re-
spect to the role that morality plays in determining the authority of legal norms. The conceptual
jurisprudence of John Austin provides a set of necessary and sufficient conditions for the exis-
tence of law that distinguishes law from non-law in every possible world. Classical natural law
theory such as the theory of Thomas Aquinas focuses on the overlap between natural law moral
and legal theories.  Similarly, the neo-naturalism of John Finnis is a development of classical
natural law theory. In contrast, the procedural naturalism of Lon L. Fuller is a rejection of the
conceptual naturalist idea that there are necessary substantive moral constraints on the content
of law. Lastly, Ronald Dworkin’s theory is a response and critique of legal positivism. All of these
theories subscribe to one or more basic tenets of natural law legal theory and are important to
its development and influence.

Table of Contents
1. Two Kinds of Natural Law Theory
2. Conceptual Naturalism
a. The Project of Conceptual Jurisprudence
b. Classical Natural Law Theory
3. The Substantive Neo-Naturalism of John Finnis
4. The Procedural Naturalism of Lon L. Fuller
5. Ronald Dworkin’s “Third Theory”
6. References and Further Reading

1. Two Kinds of Natural Law Theory

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At the outset, it is important to distinguish two kinds of theory that go by the name of natural
law. The first is a theory of morality that is roughly characterized by the following theses. First,
moral propositions have what is sometimes called objective standing in the sense that such
propositions are the bearers of objective truth-value; that is, moral propositions can be objec-
tively true or false. Though moral objectivism is sometimes equated with moral realism (see,
e.g., Moore 1992, 190: “the truth of any moral proposition lies in its correspondence with a
mind- and convention-independent moral reality”), the relationship between the two theories is
controversial. Geoffrey Sayre-McCord (1988), for example, views moral objectivism as one
species of moral realism, but not the only form; on Sayre-McCord’s view, moral subjectivism
and moral intersubjectivism are also forms of moral realism. Strictly speaking, then, natural law
moral theory is committed only to the objectivity of moral norms.

The second thesis constituting the core of natural law moral theory is the claim that standards of
morality are in some sense derived from, or entailed by, the nature of the world and the nature
of human beings. St. Thomas Aquinas, for example, identifies the rational nature of human be-
ings as that which defines moral law: “the rule and measure of human acts is the reason, which
is the first principle of human acts” (Aquinas, ST I-II, Q.90, A.I). On this common view, since
human beings are by nature rational beings, it is morally appropriate that they should behave in
a way that conforms to their rational nature. Thus, Aquinas derives the moral law from the na-
ture of human beings (thus, “natural law”).

But there is another kind of natural law theory having to do with the relationship of morality to
law. According to natural law theory of law, there is no clean division between the notion of law
and the notion of morality. Though there are different versions of natural law theory, all sub-
scribe to the thesis that there are at least some laws that depend for their “authority” not on
some pre-existing human convention, but on the logical relationship in which they stand to
moral standards. Otherwise put, some norms are authoritative in virtue of their moral content,
even when there is no convention that makes moral merit a criterion of legal validity. The idea
that the concepts of law and morality intersect in some way is called the Overlap Thesis.

As an empirical matter, many natural law moral theorists are also natural law legal theorists,
but the two theories, strictly speaking, are logically independent. One can deny natural law theo-
ry of law but hold a natural law theory of morality. John Austin, the most influential of the early
legal positivists, for example, denied the Overlap Thesis but held something that resembles a
natural law ethical theory.

Indeed, Austin explicitly endorsed the view that it is not necessarily true that the legal validity of
a norm depends on whether its content conforms to morality. But while Austin thus denied the
Overlap Thesis, he accepted an objectivist moral theory; indeed, Austin inherited his utilitarian-
ism almost wholesale from J.S. Mill and Jeremy Bentham. Here it is worth noting that utilitari-
ans sometimes seem to suggest that they derive their utilitarianism from certain facts about hu-
man nature; as Bentham once wrote, “nature has placed mankind under the governance of two
sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as

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well as to determine what we shall do. On the one hand the standard of right and wrong, on the
other the chain of causes and effects, are fastened to their throne” (Bentham 1948, 1). Thus, a
commitment to natural law theory of morality is consistent with the denial of natural law theory
of law.

Conversely, one could, though this would be unusual, accept a natural law theory of law without
holding a natural law theory of morality. One could, for example, hold that the conceptual point
of law is, in part, to reproduce the demands of morality, but also hold a form of ethical subjec-
tivism (or relativism). On this peculiar view, the conceptual point of law would be to enforce
those standards that are morally valid in virtue of cultural consensus. For this reason, natural
law theory of law is logically independent of natural law theory of morality. The remainder of
this essay will be exclusively concerned with natural law theories of law.

2. Conceptual Naturalism

a. The Project of Conceptual Jurisprudence

The principal objective of conceptual (or analytic) jurisprudence has traditionally been to pro-
vide an account of what distinguishes law as a system of norms from other systems of norms,
such as ethical norms. As John Austin describes the project, conceptual jurisprudence seeks “the
essence or nature which is common to all laws that are properly so called” (Austin 1995, 11).
Accordingly, the task of conceptual jurisprudence is to provide a set of necessary and sufficient
conditions for the existence of law that distinguishes law from non-law in every possible world.

While this task is usually interpreted as an attempt to analyze the concepts of law and legal sys-
tem, there is some confusion as to both the value and character of conceptual analysis in philos-
ophy of law. As Brian Leiter (1998) points out, philosophy of law is one of the few philosophical
disciplines that takes conceptual analysis as its principal concern; most other areas in philoso-
phy have taken a naturalistic turn, incorporating the tools and methods of the sciences. To clari-
fy the role of conceptual analysis in law, Brian Bix (1995) distinguishes a number of different
purposes that can be served by conceptual claims: (1) to track linguistic usage; (2) to stipulate
meanings; (3) to explain what is important or essential about a class of objects; and (4) to estab-
lish an evaluative test for the concept-word. Bix takes conceptual analysis in law to be primarily
concerned with (3) and (4).

In any event, conceptual analysis of law remains an important, if controversial, project in con-
temporary legal theory. Conceptual theories of law have traditionally been characterized in
terms of their posture towards the Overlap Thesis. Thus, conceptual theories of law have tradi-
tionally been divided into two main categories: those like natural law legal theory that affirm
there is a conceptual relation between law and morality and those like legal positivism that deny
such a relation.

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b. Classical Natural Law Theory

All forms of natural law theory subscribe to the Overlap Thesis, which asserts that there is some
kind of non-conventional relation between law and morality. According to this view, then, the
notion of law cannot be fully articulated without some reference to moral notions. Though the
Overlap Thesis may seem unambiguous, there are a number of different ways in which it can be
interpreted.

The strongest construction of the Overlap Thesis forms the foundation for the classical natural-
ism of Aquinas and Blackstone. Aquinas distinguishes four kinds of law: (1) eternal law; (2) nat-
ural law; (3) human law; and (4) divine law. Eternal law is comprised of those laws that govern
the nature of an eternal universe; as Susan Dimock (1999, 22) puts it, one can “think of eternal
law as comprising all those scientific (physical, chemical, biological, psychological, etc.) ‘laws’ by
which the universe is ordered.” Divine law is concerned with those standards that must be satis-
fied by a human being to achieve eternal salvation. One cannot discover divine law by natural
reason alone; the precepts of divine law are disclosed only through divine revelation.

The natural law is comprised of those precepts of the eternal law that govern the behavior of be-
ings possessing reason and free will. The first precept of the natural law, according to Aquinas,
is the somewhat vacuous imperative to do good and avoid evil. Here it is worth noting that
Aquinas holds a natural law theory of morality: what is good and evil, according to Aquinas, is
derived from the rational nature of human beings. Good and evil are thus both objective and
universal.

But Aquinas is also a natural law legal theorist. On his view, a human law (that is, that which is
promulgated by human beings) is valid only insofar as its content conforms to the content of the
natural law; as Aquinas puts the point: “[E]very human law has just so much of the nature of law
as is derived from the law of nature. But if in any point it deflects from the law of nature, it is no
longer a law but a perversion of law” (ST I-II, Q.95, A.II). To paraphrase Augustine’s famous re-
mark, an unjust law is really no law at all.

The idea that a norm that does not conform to the natural law cannot be legally valid is the
defining thesis of conceptual naturalism. As William Blackstone describes the thesis, “This law
of nature, being co-eval with mankind and dictated by God himself, is of course superior in
obligation to any other. It is binding over all the globe, in all countries, and at all times: no hu-
man laws are of any validity, if contrary to this; and such of them as are valid derive all their
force, and all their authority, mediately or immediately, from this original” (1979, 41). In this
passage, Blackstone articulates the two claims that constitute the theoretical core of conceptual
naturalism: 1) there can be no legally valid standards that conflict with the natural law; and 2)
all valid laws derive what force and authority they have from the natural law.

It should be noted that classical naturalism is consistent with allowing a substantial role to hu-
man beings in the manufacture of law. While the classical naturalist seems committed to the
claim that the law necessarily incorporates all moral principles, this claim does not imply that
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the law is exhausted by the set of moral principles. There will still be coordination problems
(e.g., which side of the road to drive on) that can be resolved in any number of ways consistent
with the set of moral principles. Thus, the classical naturalist does not deny that human beings
have considerable discretion in creating natural law. Rather she claims only that such discretion
is necessarily limited by moral norms: legal norms that are promulgated by human beings are
valid only if they are consistent with morality.

Critics of conceptual naturalism have raised a number of objections to this view. First, it has of-
ten been pointed out that, contra Augustine, unjust laws are all-too- frequently enforced against
persons. As Austin petulantly put the point:

Now, to say that human laws which conflict with the Divine law are not binding, that is to
say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those
which are most opposed to the will of God, have been and are continually enforced as laws by
judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the
sovereign under the penalty of death; if I commit this act, I shall be tried and condemned,
and if I object to the sentence, that it is contrary to the law of God, who has commanded that
human lawgivers shall not prohibit acts which have no evil consequences, the Court of
Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pur-
suance of the law of which I have impugned the validity (Austin 1995, 158).

Of course, as Brian Bix (1999) points out, the argument does little work for Austin because it is
always possible for a court to enforce a law against a person that does not satisfy Austin’s own
theory of legal validity.

Another frequently expressed worry is that conceptual naturalism undermines the possibility of
moral criticism of the law; inasmuch as conformity with natural law is a necessary condition for
legal validity, all valid law is, by definition, morally just. Thus, on this line of reasoning, the legal
validity of a norm necessarily entails its moral justice. As Jules Coleman and Jeffrey Murphy
(1990, 18) put the point:

The important things [conceptual naturalism] supposedly allows us to do (e.g., morally eval-
uate the law and determine our moral obligations with respect to the law) are actually ren-
dered more difficult by its collapse of the distinction between morality and law. If we really
want to think about the law from the moral point of view, it may obscure the task if we see
law and morality as essentially linked in some way. Moral criticism and reform of law may be
aided by an initial moral skepticism about the law.

There are a couple of problems with this line of objection. First, conceptual naturalism does not
foreclose criticism of those norms that are being enforced by a society as law. Insofar as it can
plausibly be claimed that the content of a norm being enforced by society as law does not con-
form to the natural law, this is a legitimate ground of moral criticism: given that the norm being
enforced by law is unjust, it follows, according to conceptual naturalism, that it is not legally
valid. Thus, the state commits wrong by enforcing that norm against private citizens.

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Second, and more importantly, this line of objection seeks to criticize a conceptual theory of law
by pointing to its practical implications ñ a strategy that seems to commit a category mistake.
Conceptual jurisprudence assumes the existence of a core of social practices (constituting law)
that requires a conceptual explanation. The project motivating conceptual jurisprudence, then,
is to articulate the concept of law in a way that accounts for these pre-existing social practices. A
conceptual theory of law can legitimately be criticized for its failure to adequately account for
the pre-existing data, as it were; but it cannot legitimately be criticized for either its normative
quality or its practical implications.

A more interesting line of argument has recently been taken up by Brian Bix (1996). Following
John Finnis (1980), Bix rejects the interpretation of Aquinas and Blackstone as conceptual natu-
ralists, arguing instead that the claim that an unjust law is not a law should not be taken
literally:

A more reasonable interpretation of statements like “an unjust law is no law at all” is that un-
just laws are not laws “in the fullest sense.” As we might say of some professional, who had
the necessary degrees and credentials, but seemed nonetheless to lack the necessary ability
or judgment: “she’s no lawyer” or “he’s no doctor.” This only indicates that we do not think
that the title in this case carries with it all the implications it usually does. Similarly, to say
that an unjust law is “not really law” may only be to point out that it does not carry the same
moral force or offer the same reasons for action as laws consistent with “higher law” (Bix
1996, 226).

Thus, Bix construes Aquinas and Blackstone as having views more similar to the neo- natural-
ism of John Finnis discussed below in Section III. Nevertheless, while a plausible case can be
made in favor of Bix’s view, the long history of construing Aquinas and Blackstone as conceptual
naturalists, along with its pedagogical value in developing other theories of law, ensures that
this practice is likely, for better or worse, to continue indefinitely.

3. The Substantive Neo-Naturalism of John Finnis

John Finnis takes himself to be explicating and developing the views of Aquinas and Blackstone.
Like Bix, Finnis believes that the naturalism of Aquinas and Blackstone should not be construed
as a conceptual account of the existence conditions for law. According to Finnis, the classical
naturalists were not concerned with giving a conceptual account of legal validity; rather they
were concerned with explaining the moral force of law: “the principles of natural law explain the
obligatory force (in the fullest sense of ‘obligation’) of positive laws, even when those laws can-
not be deduced from those principles” (Finnis 1980, 23-24). On Finnis’s view of the Overlap
Thesis, the essential function of law is to provide a justification for state coercion (a view he
shares with Ronald Dworkin). Accordingly, an unjust law can be legally valid, but it cannot pro-
vide an adequate justification for use of the state coercive power and is hence not obligatory in
the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in the concept of
law. An unjust law, on this view, is legally binding, but is not fully law.

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Like classical naturalism, Finnis’s naturalism is both an ethical theory and a theory of law.
Finnis distinguishes a number of equally valuable basic goods: life, health, knowledge, play,
friendship, religion, and aesthetic experience. Each of these goods, according to Finnis, has in-
trinsic value in the sense that it should, given human nature, be valued for its own sake and not
merely for the sake of some other good it can assist in bringing about. Moreover, each of these
goods is universal in the sense that it governs all human cultures at all times. The point of moral
principles, on this view, is to give ethical structure to the pursuit of these basic goods; moral
principles enable us to select among competing goods and to define what a human being can
permissibly do in pursuit of a basic good.

On Finnis’s view, the conceptual point of law is to facilitate the common good by providing au-
thoritative rules that solve coordination problems that arise in connection with the common
pursuit of these basic goods. Thus, Finnis sums up his theory of law as follows:

[T]he term ‘law’ … refer[s] primarily to rules made, in accordance with regulative legal rules,
by a determinate and effective authority (itself identified and, standardly, constituted as an
institution by legal rules) for a ‘complete’ community, and buttressed by sanctions in accor-
dance with the rule-guided stipulations of adjudicative institutions, this ensemble of rules
and institutions being directed to reasonably resolving any of the community’s co-ordination
problems (and to ratifying, tolerating, regulating, or overriding co-ordination solutions from
any other institutions or sources of norms) for the common good of that community (Finnis
1980, 276).

Again, it bears emphasizing that Finnis takes care to deny that there is any necessary moral test
for legal validity: “one would simply be misunderstanding my conception of the nature and pur-
pose of explanatory definitions of theoretical concepts if one supposed that my definition ‘ruled
out as non-laws’ laws which failed to meet, or meet fully, one or other of the elements of the def-
inition” (Finnis 1980, 278).

Nevertheless, Finnis believes that to the extent that a norm fails to satisfy these conditions, it
likewise fails to fully manifest the nature of law and thereby fails to fully obligate the citizen-
subject of the law. Unjust laws may obligate in a technical legal sense, on Finnis’s view, but they
may fail to provide moral reasons for action of the sort that it is the point of legal authority to
provide. Thus, Finnis argues that “a ruler’s use of authority is radically defective if he exploits
his opportunities by making stipulations intended by him not for the common good but for his
own or his friends’ or party’s or faction’s advantage, or out of malice against some person or
group” (Finnis 1980, 352). For the ultimate basis of a ruler’s moral authority, on this view, “is
the fact that he has the opportunity, and thus the responsibility, of furthering the common good
by stipulating solutions to a community’s co- ordination problems” (Finnis 1980, 351).

Finnis’s theory is certainly more plausible as a theory of law than the traditional interpretation
of classical naturalism, but such plausibility comes, for better or worse, at the expense of natu-
ralism’s identity as a distinct theory of law. Indeed, it appears that Finnis’s natural law theory is
compatible with naturalism’s historical adversary, legal positivism, inasmuch as Finnis’s view is

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compatible with a source-based theory of legal validity; laws that are technically valid in virtue
of source but unjust do not, according to Finnis, fully obligate the citizen. Indeed, Finnis (1996)
believes that Aquinas’s classical naturalism fully affirms the notion that human laws are
“posited.”

4. The Procedural Naturalism of Lon L. Fuller

Like Finnis, Lon Fuller (1964) rejects the conceptual naturalist idea that there are necessary
substantive moral constraints on the content of law. But Fuller, unlike Finnis, believes that law
is necessarily subject to a procedural morality. On Fuller’s view, human activity is necessarily
goal-oriented or purposive in the sense that people engage in a particular activity because it
helps them to achieve some end. Insofar as human activity is essentially purposive, according to
Fuller, particular human activities can be understood only in terms that make reference to their
purposes and ends. Thus, since lawmaking is essentially purposive activity, it can be understood
only in terms that explicitly acknowledge its essential values and purposes:

The only formula that might be called a definition of law offered in these writings is by now
thoroughly familiar: law is the enterprise of subjecting human conduct to the governance of
rules. Unlike most modern theories of law, this view treats law as an activity and regards a
legal system as the product of a sustained purposive effort (Fuller 1964, 106).

To the extent that a definition of law can be given, then, it must include the idea that law’s es-
sential function is to “achiev[e] [social] order through subjecting people’s conduct to the guid-
ance of general rules by which they may themselves orient their behavior” (Fuller 1965, 657).

Fuller’s functionalist conception of law implies that nothing can count as law unless it is capable
of performing law’s essential function of guiding behavior. And to be capable of performing this
function, a system of rules must satisfy the following principles:

(P1) the rules must be expressed in general terms;

(P2) the rules must be publicly promulgated;
(P3) the rules must be prospective in effect;
(P4) the rules must be expressed in understandable terms;
(P5) the rules must be consistent with one another;
(P6) the rules must not require conduct beyond the powers of the affected parties;
(P7) the rules must not be changed so frequently that the subject cannot rely on them;
and
(P8) the rules must be administered in a manner consistent with their wording.

On Fuller’s view, no system of rules that fails minimally to satisfy these principles of legality can
achieve law’s essential purpose of achieving social order through the use of rules that guide be-
havior. A system of rules that fails to satisfy (P2) or (P4), for example, cannot guide behavior be-
cause people will not be able to determine what the rules require. Accordingly, Fuller concludes

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that his eight principles are “internal” to law in the sense that they are built into the existence
conditions for law.

These internal principles constitute a morality, according to Fuller, because law necessarily has
positive moral value in two respects: (1) law conduces to a state of social order and (2) does so
by respecting human autonomy because rules guide behavior. Since no system of rules can
achieve these morally valuable objectives without minimally complying with the principles of le-
gality, it follows, on Fuller’s view, that they constitute a morality. Since these moral principles
are built into the existence conditions for law, they are internal and hence represent a conceptu-
al connection between law and morality. Thus, like the classical naturalists and unlike Finnis,
Fuller subscribes to the strongest form of the Overlap Thesis, which makes him a conceptual
naturalist.

Nevertheless, Fuller’s conceptual naturalism is fundamentally different from that of classical

naturalism. First, Fuller rejects the classical naturalist view that there are necessary moral con-
straints on the content of law, holding instead that there are necessary moral constraints on the
procedural mechanisms by which law is made and administered: “What I have called the inter-
nal morality of law is … a procedural version of natural law … [in the sense that it is] concerned,
not with the substantive aims of legal rules, but with the ways in which a system of rules for gov-
erning human conduct must be constructed and administered if it is to be efficacious and at the
same time remain what it purports to be” (Fuller 1964, 96- 97).

Second, Fuller identifies the conceptual connection between law and morality at a higher level of
abstraction than the classical naturalists. The classical naturalists view morality as providing
substantive constraints on the content of individual laws; an unjust norm, on this view, is con-
ceptually disqualified from being legally valid. In contrast, Fuller views morality as providing a
constraint on the existence of a legal system: “A total failure in any one of these eight directions
does not simply result in a bad system of law; it results in something that is not properly called a
legal system at all” (Fuller 1964, 39).

Fuller’s procedural naturalism is vulnerable to a number of objections. H.L.A. Hart, for exam-
ple, denies Fuller’s claim that the principles of legality constitute an internal morality; according
to Hart, Fuller confuses the notions of morality and efficacy:

[T]he author’s insistence on classifying these principles of legality as a “morality” is a source

of confusion both for him and his readers…. [T]he crucial objection to the designation of
these principles of good legal craftsmanship as morality, in spite of the qualification “inner,”
is that it perpetrates a confusion between two notions that it is vital to hold apart: the no-
tions of purposive activity and morality. Poisoning is no doubt a purposive activity, and re-
flections on its purpose may show that it has its internal principles. (“Avoid poisons however
lethal if they cause the victim to vomit”….) But to call these principles of the poisoner’s art
“the morality of poisoning” would simply blur the distinction between the notion of efficien-
cy for a purpose and those final judgments about activities and purposes with which morality
in its various forms is concerned (Hart 1965, 1285-86).

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On Hart’s view, all actions, including virtuous acts like lawmaking and impermissible acts like
poisoning, have their own internal standards of efficacy. But insofar as such standards of effica-
cy conflict with morality, as they do in the case of poisoning, it follows that they are distinct
from moral standards. Thus, while Hart concedes that something like Fuller’s eight principles
are built into the existence conditions for law, he concludes they do not constitute a conceptual
connection between law and morality.

Unfortunately, Hart overlooks the fact that most of Fuller’s eight principles double as moral
ideals of fairness. For example, public promulgation in understandable terms may be a neces-
sary condition for efficacy, but it is also a moral ideal; it is morally objectionable for a state to
enforce rules that have not been publicly promulgated in terms reasonably calculated to give no-
tice of what is required. Similarly, we take it for granted that it is wrong for a state to enact
retroactive rules, inconsistent rules, and rules that require what is impossible. Poisoning may
have its internal standards of efficacy, but such standards are distinguishable from the princi-
ples of legality in that they conflict with moral ideals.

Nevertheless, Fuller’s principles operate internally, not as moral ideals, but merely as principles
of efficacy. As Fuller would likely acknowledge, the existence of a legal system is consistent with
considerable divergence from the principles of legality. Legal standards, for example, are neces-
sarily promulgated in general terms that inevitably give rise to problems of vagueness. And offi-
cials all too often fail to administer the laws in a fair and even-handed manner even in the best
of legal systems. These divergences may always be prima facie objectionable, but they are incon-
sistent with a legal system only when they render a legal system incapable of performing its es-
sential function of guiding behavior. Insofar as these principles are built into the existence con-
ditions for law, it is because they operate as efficacy conditions and not because they function as
moral ideals.

5. Ronald Dworkin’s “Third Theory”

Ronald Dworkin’s so-called third theory of law is best understood as a response to legal posi-
tivism, which is essentially constituted by three theoretical commitments: the Social Fact Thesis,
the Conventionality Thesis, and the Separability Thesis. The Social Fact Thesis asserts it is a
necessary truth that legal validity is ultimately a function of certain kinds of social facts; the idea
here is that what ultimately explains the validity of a law is the presence of certain social facts,
especially formal promulgation by a legislature.

The Conventionality Thesis emphasizes law’s conventional nature, claiming that the social facts
giving rise to legal validity are authoritative in virtue of a social convention. On this view, the
criteria that determine whether or not any given norm counts as a legal norm are binding be-
cause of an implicit or explicit agreement among officials. Thus, for example, the U.S.
Constitution is authoritative in virtue of the conventional fact that it was formally ratified by all
fifty states.

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The Separability Thesis, at the most general level, simply denies naturalism’s Overlap Thesis;
according to the Separability Thesis, there is no conceptual overlap between the notions of law
and morality. As Hart more narrowly construes it, the Separability Thesis is “just the simple
contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands
of morality, though in fact they have often done so” (Hart 1994, 185-186).

Dworkin rejects positivism’s Social Fact Thesis on the ground that there are some legal stan-
dards the authority of which cannot be explained in terms of social facts. In deciding hard cases,
for example, judges often invoke moral principles that Dworkin believes do not derive their le-
gal authority from the social criteria of legality contained in a rule of recognition (Dworkin 1977,
p. 40).

In Riggs v. Palmer, for example, the court considered the question of whether a murderer could
take under the will of his victim. At the time the case was decided, neither the statutes nor the
case law governing wills expressly prohibited a murderer from taking under his victim’s will.
Despite this, the court declined to award the defendant his gift under the will on the ground that
it would be wrong to allow him to profit from such a grievous wrong. On Dworkin’s view, the
court decided the case by citing “the principle that no man may profit from his own wrong as a
background standard against which to read the statute of wills and in this way justified a new in-
terpretation of that statute” (Dworkin 1977, 29).

On Dworkin’s view, the Riggs court was not just reaching beyond the law to extralegal standards
when it considered this principle. For the Riggs judges would “rightfully” have been criticized
had they failed to consider this principle; if it were merely an extralegal standard, there would
be no rightful grounds to criticize a failure to consider it (Dworkin 1977, 35). Accordingly,
Dworkin concludes that the best explanation for the propriety of such criticism is that principles
are part of the law.

Further, Dworkin maintains that the legal authority of standards like the Riggs principle cannot
derive from promulgation in accordance with purely formal requirements: “[e]ven though prin-
ciples draw support from the official acts of legal institutions, they do not have a simple or direct
enough connection with these acts to frame that connection in terms of criteria specified by
some ultimate master rule of recognition” (Dworkin 1977, 41).

On Dworkin’s view, the legal authority of the Riggs principle can be explained wholly in terms of
its content. The Riggs principle was binding, in part, because it is a requirement of fundamental
fairness that figures into the best moral justification for a society’s legal practices considered as
a whole. A moral principle is legally authoritative, according to Dworkin, insofar as it maximally
conduces to the best moral justification for a society’s legal practices considered as a whole.

Dworkin believes that a legal principle maximally contributes to such a justification if and only if
it satisfies two conditions: (1) the principle coheres with existing legal materials; and (2) the
principle is the most morally attractive standard that satisfies (1). The correct legal principle is

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the one that makes the law the moral best it can be. Accordingly, on Dworkin’s view, adjudica-
tion is and should be interpretive:

[J]udges should decide hard cases by interpreting the political structure of their community
in the following, perhaps special way: by trying to find the best justification they can find, in
principles of political morality, for the structure as a whole, from the most profound consti-
tutional rules and arrangements to the details of, for example, the private law of tort or con-
tract (Dworkin 1982, 165).

There are, thus, two elements of a successful interpretation. First, since an interpretation is suc-
cessful insofar as it justifies the particular practices of a particular society, the interpretation
must fit with those practices in the sense that it coheres with existing legal materials defining
the practices. Second, since an interpretation provides a moral justification for those practices,
it must present them in the best possible moral light.

For this reason, Dworkin argues that a judge should strive to interpret a case in roughly the fol-
lowing way:

A thoughtful judge might establish for himself, for example, a rough “threshold” of fit which
any interpretation of data must meet in order to be “acceptable” on the dimension of fit, and
then suppose that if more than one interpretation of some part of the law meets this thresh-
old, the choice among these should be made, not through further and more precise compar-
isons between the two along that dimension, but by choosing the interpretation which is
“substantively” better, that is, which better promotes the political ideals he thinks correct
(Dworkin 1982, 171).

As Dworkin conceives it, then, the judge must approach judicial decision-making as something
that resembles an exercise in moral philosophy. Thus, for example, the judge must decide cases
on the basis of those moral principles that “figure[] in the soundest theory of law that can be
provided as a justification for the explicit substantive and institutional rules of the jurisdiction
in question” (Dworkin 1977, 66).

And this is a process, according to Dworkin, that “must carry the lawyer very deep into political
and moral theory.” Indeed, in later writings, Dworkin goes so far as to claim, somewhat implau-
sibly, that “any judge’s opinion is itself a piece of legal philosophy, even when the philosophy is
hidden and the visible argument is dominated by citation and lists of facts” (Dworkin 1986, 90).

Dworkin believes his theory of judicial obligation is a consequence of what he calls the Rights
Thesis, according to which judicial decisions always enforce pre-existing rights: “even when no
settled rule disposes of the case, one party may nevertheless have a right to win. It remains the
judge’s duty, even in hard cases, to discover what the rights of the parties are, not to invent new
rights retrospectively” (Dworkin 1977, 81).

In “Hard Cases,” Dworkin distinguishes between two kinds of legal argument. Arguments of pol-
icy “justify a political decision by showing that the decision advances or protects some collective

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goal of the community as a whole” (Dworkin 1977, 82). In contrast, arguments of principle “jus-
tify a political decision by showing that the decision respects or secures some individual or
group right” (Dworkin 1977, 82).

On Dworkin’s view, while the legislature may legitimately enact laws that are justified by argu-
ments of policy, courts may not pursue such arguments in deciding cases. For a consequentialist
argument of policy can never provide an adequate justification for deciding in favor of one par-
ty’s claim of right and against another party’s claim of right. An appeal to a pre-existing right,
according to Dworkin, can ultimately be justified only by an argument of principle. Thus, insofar
as judicial decisions necessarily adjudicate claims of right, they must ultimately be based on the
moral principles that figure into the best justification of the legal practices considered as a
whole.

Notice that Dworkin’s views on legal principles and judicial obligation are inconsistent with all
three of legal positivism’s core commitments. Each contradicts the Conventionality Thesis inso-
far as judges are bound to interpret posited law in light of unposited moral principles. Each con-
tradicts the Social Fact Thesis because these moral principles count as part of a community’s law
regardless of whether they have been formally promulgated. Most importantly, Dworkin’s view
contradicts the Separability Thesis in that it seems to imply that some norms are necessarily
valid in virtue of their moral content. It is his denial of the Separability Thesis that places
Dworkin in the naturalist camp.

6. References and Further Reading

Thomas Aquinas, On Law, Morality and Politics (Indianapolis: Hackett Publishing Co., 1988)
John Austin, Lectures on Jurisprudence and the Philosophy of Positive Law (St. Clair Shores, MI: Scholarly
Press, 1977)
John Austin, The Province of Jurisprudence Determined (Cambridge: Cambridge University Press, 1995)
Jeremy Bentham, A Fragment of Government (Cambridge: Cambridge University Press, 1988)
Jeremy Bentham, Of Laws In General (London: Athlone Press, 1970) Jeremy Bentham, The Principles of
Morals and Legislation (New York: Hafner Press, 1948)
Brian Bix, “On Description and Legal Reasoning,” in Linda Meyer (ed.), Rules and Reasoning (Oxford: Hart
Publishing, 1999)
Brian Bix, Jurisprudence: Theory and Context (Boulder, CO: Westview Press, 1996) Brian Bix, “Natural Law
Theory,” in Dennis M. Patterson (ed.), A Companion to Philosophy of Law and Legal Theory (Cam-
bridge: Blackwell Publishing Co., 1996)
William Blackstone, Commentaries on the Law of England (Chicago: The University of Chicago Press, 1979)
Jules L. Coleman, “On the Relationship Between Law and Morality,” Ratio Juris, vol. 2, no. 1 (1989), 66-78
Jules L. Coleman, “Negative and Positive Positivism,” 11 Journal of Legal Studies 139 (1982)
Jules L. Coleman and Jeffrie Murphy, Philosophy of Law (Boulder, CO: Westview Press, 1990)
Ronald M. Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986)
Ronald M. Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977)
John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980)

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John Finnis, “The Truth in Legal Positivism,” in Robert P. George, The Autonomy of Law (Oxford:
Clarendon Press, 1996), 195-214
Lon L. Fuller, The Morality of Law, Revised Edition (New Haven: Yale University Press, 1964)
Lon L. Fuller, “A Reply to Professors Cohen and Dworkin”, 10 Villanova Law Review 655 (1965), 657. Lon L.
Fuller, “Positivism and Fidelity to Law–A Reply to Professor Hart,” 71 Harvard Law Review 630 (1958)
Klaus F¸þer, “Farewell to ‘Legal Positivism’: The Separation Thesis Unravelling,” in George, The Autonomy
of Law, 119-162
Robert P. George, “Natural Law and Positive Law,” in George, The Autonomy of Law, 321-334
Robert P. George, Natural Law Theory: Contemporary Essays (Oxford: Clarendon Press, 1992)
H.L.A. Hart, The Concept of Law, Second Edition (Oxford: Clarendon Press, 1994)
H.L.A. Hart, “Book Review of The Morality of Law” 78 Harvard Law Review 1281 (1965) H.L.A. Hart,
Essays on Bentham (Oxford: Clarendon Press, 1982) H.L.A. Hart, “Positivism and the Separation of Law
and Morals,” 71 Harvard Law Review 593 (1958)
Kenneth Einar Himma, “Positivism, Naturalism, and the Obligation to Obey Law,” Southern Journal of
Philosophy, vol. 36, no. 2 (Summer 1999)
Kenneth Einar Himma, “Functionalism and Legal Theory: The Hart/Fuller Debate Revisited,” De
Philosophia, vol. 14, no. 2 (Fall/Winter 1998)
J.L. Mackie, “The Third Theory of Law,” Philosophy & Public Affairs, Vol. 7, No. 1 (Fall 1977)
Michael Moore, “Law as a Functional Kind,” in George, Natural Law Theory, 188- 242
Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979)
Joseph Raz, “Authority, Law and Morality,” The Monist, vol. 68, 295-324 Joseph Raz, “Legal Principles and
the Limits of Law,” 81 Yale Law Review 823 (1972)
Geoffrey Sayre-McCord, “The Many Moral Realisms,” in Sayre-McCord (ed.), Essays on Moral Realism (Ith-
ica: Cornell University Press, 1988)

Author Information
Kenneth Einar Himma
Email: [email protected]
Seattle Pacific University
U. S. A.

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