On the dividing line between natural law theory and legal positivism

Notre Dame Law Review

Volumn 75, Issue 5, 2000, Pages 1613-1624

  Bix, Brian ^a,b  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

^b QUINNIPIAC UNIVERSITY   (United States)

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EID: 0034370727     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (69)

1. See JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980).
2. See, e.g., RUSSELL HITTINGER, A CRITIQUE OF THE NEW NATURAL LAW THEORY (1987) (criticizing the approach to natural law developed by Germain Grisez and Finnis from the perspective of traditional Thomistic natural law); Russell Hittinger, Varieties of Minimalist Natural Law Theory, 34 AM. J. JURIS. 133 (1989) (same).
3. See, e.g., RUSSELL HITTINGER, A CRITIQUE OF THE NEW NATURAL LAW THEORY (1987) (criticizing the approach to natural law developed by Germain Grisez and Finnis from the perspective of traditional Thomistic natural law); Russell Hittinger, Varieties of Minimalist Natural Law Theory, 34 AM. J. JURIS. 133 (1989) (same).
4. For an overview of natural law theory and the place of natural law legal theories within that larger context, see Brian Bix, Natural Law Theory: The Modern Tradition, in HANDBOOK OF JURISPRUDENCE AND LEGAL PHILOSOPHY (Jules L. Coleman & Scott Shapiro eds., forthcoming 2000), available in Social Science Research Network Electronic Library (last modified Dec. 12, 1999) .
5. Joseph Raz, Postema on Law's Autonomy and Public Practical Reasons: A Critical Comment, 4 LEGAL THEORY 1, 1 (1998).
6. See, e.g., YVES R. SIMON, THE TRADITION OF NATURAL LAW: A PHILOSOPHER'S REFLECTIONS 41-66 (Vukan Kuic ed., 1965); LLOYD L. WEINREB, NATURAL LAW AND JUSTICE 1-2 (1987) (discussing the connections between nature, law, and morality in classical natural law theory); Bix, supra note 3, at 1-18.
7. See, e.g., YVES R. SIMON, THE TRADITION OF NATURAL LAW: A PHILOSOPHER'S REFLECTIONS 41-66 (Vukan Kuic ed., 1965); LLOYD L. WEINREB, NATURAL LAW AND JUSTICE 1-2 (1987) (discussing the connections between nature, law, and morality in classical natural law theory); Bix, supra note 3, at 1-18.
8. See ROBERT P. GEORGE, IN DEFENSE OF NATURAL LAW 83-87 (1999) (summarizing the dispute).
9. See FINNIS, supra note 1, at 33-36 (responding to the "is/ought" challenge).
10. See, e.g., SAINT THOMAS AQUINAS, THE TREATISE ON LAW (R.J. Henle ed. & trans., 1993) (offering a translation of sections of the Summa Theologiae that discuss law); FINNIS, supra note 1, at 260-96.
11. Some writers within legal positivism view theories of law (compatible with that approach) as conceptual and non-evaluative, but not descriptive (in the narrowest sense of that term). One prominent example is Joseph Raz: Since law belongs to the executive stage [of practical decisionmaking], it can be identified without resort to moral arguments, which belong by definition to the deliberative stage. The doctrine of the nature of law yields a test for identifying law the use of which requires no resort to moral or any other evaluative argument. But it does not follow that one can defend the doctrine of the nature of law itself without using evaluative (though not necessarily moral) arguments. Its justification is tied to an evaluative judgment about the relative importance of various features of social organizations, and these reflect our moral and intellectual interests and concerns. JOSEPH RAZ, ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS 209 (1994); see also Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, 4 LEGAL THEORY 249, 267-68 (1998) (summarizing Raz's disagreement with H.L.A. Hart regarding whether Hart's legal positivistic theory is descriptive or evaluative). But see H.L.A. HART, THE CONCEPT OF LAW 239 (2d ed. 1994) ("My aim in this book was to provide a theory of what law is which is both general and descriptive.").
12. Some writers within legal positivism view theories of law (compatible with that approach) as conceptual and non-evaluative, but not descriptive (in the narrowest sense of that term). One prominent example is Joseph Raz: Since law belongs to the executive stage [of practical decisionmaking], it can be identified without resort to moral arguments, which belong by definition to the deliberative stage. The doctrine of the nature of law yields a test for identifying law the use of which requires no resort to moral or any other evaluative argument. But it does not follow that one can defend the doctrine of the nature of law itself without using evaluative (though not necessarily moral) arguments. Its justification is tied to an evaluative judgment about the relative importance of various features of social organizations, and these reflect our moral and intellectual interests and concerns. JOSEPH RAZ, ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS 209 (1994); see also Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, 4 LEGAL THEORY 249, 267-68 (1998) (summarizing Raz's disagreement with H.L.A. Hart regarding whether Hart's legal positivistic theory is descriptive or evaluative). But see H.L.A. HART, THE CONCEPT OF LAW 239 (2d ed. 1994) ("My aim in this book was to provide a theory of what law is which is both general and descriptive.").
13. Some writers within legal positivism view theories of law (compatible with that approach) as conceptual and non-evaluative, but not descriptive (in the narrowest sense of that term). One prominent example is Joseph Raz: Since law belongs to the executive stage [of practical decisionmaking], it can be identified without resort to moral arguments, which belong by definition to the deliberative stage. The doctrine of the nature of law yields a test for identifying law the use of which requires no resort to moral or any other evaluative argument. But it does not follow that one can defend the doctrine of the nature of law itself without using evaluative (though not necessarily moral) arguments. Its justification is tied to an evaluative judgment about the relative importance of various features of social organizations, and these reflect our moral and intellectual interests and concerns. JOSEPH RAZ, ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS 209 (1994); see also Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, 4 LEGAL THEORY 249, 267-68 (1998) (summarizing Raz's disagreement with H.L.A. Hart regarding whether Hart's legal positivistic theory is descriptive or evaluative). But see H.L.A. HART, THE CONCEPT OF LAW 239 (2d ed. 1994) ("My aim in this book was to provide a theory of what law is which is both general and descriptive.").
14. See generally BRIAN BIX, JURISPRUDENCE: THEORY AND CONTEXT 31-49 (2d ed. 1999) (discussing Hart and legal positivism); THE AUTONOMY OF LAW: ESSAYS ON LEGAL POSITIVISM (Robert P. George ed., 1996) [hereinafter THE AUTONOMY OF LAW]; Jules L. Coleman & Brian Leiter, Legal Positivism, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 241 (Dennis Patterson ed., 1996).
15. See generally BRIAN BIX, JURISPRUDENCE: THEORY AND CONTEXT 31-49 (2d ed. 1999) (discussing Hart and legal positivism); THE AUTONOMY OF LAW: ESSAYS ON LEGAL POSITIVISM (Robert P. George ed., 1996) [hereinafter THE AUTONOMY OF LAW]; Jules L. Coleman & Brian Leiter, Legal Positivism, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 241 (Dennis Patterson ed., 1996).
16. See generally BRIAN BIX, JURISPRUDENCE: THEORY AND CONTEXT 31-49 (2d ed. 1999) (discussing Hart and legal positivism); THE AUTONOMY OF LAW: ESSAYS ON LEGAL POSITIVISM (Robert P. George ed., 1996) [hereinafter THE AUTONOMY OF LAW]; Jules L. Coleman & Brian Leiter, Legal Positivism, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 241 (Dennis Patterson ed., 1996).
17. JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 157 (Wilfrid E. Rumble ed., Cambridge Univ. Press 1995) (1832). The Blackstone quotation to which Austin was responding appears in 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 41 (University of Chicago Press 1979) (1765). For a sympathetic discussion of Blackstone's natural law views, see J.M. Finnis, Blackstone's Theoretical Intentions, 12 NAT. L.F. 163 (1967).
18. JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 157 (Wilfrid E. Rumble ed., Cambridge Univ. Press 1995) (1832). The Blackstone quotation to which Austin was responding appears in 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 41 (University of Chicago Press 1979) (1765). For a sympathetic discussion of Blackstone's natural law views, see J.M. Finnis, Blackstone's Theoretical Intentions, 12 NAT. L.F. 163 (1967).
19. JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 157 (Wilfrid E. Rumble ed., Cambridge Univ. Press 1995) (1832). The Blackstone quotation to which Austin was responding appears in 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 41 (University of Chicago Press 1979) (1765). For a sympathetic discussion of Blackstone's natural law views, see J.M. Finnis, Blackstone's Theoretical Intentions, 12 NAT. L.F. 163 (1967).
20. See John Finnis, The Truth in Legal Positivism, in THE AUTONOMY OF LAW, supra note 10, at 195, 195.
21. Id. at 204.
22. See, e.g., FINNIS, supra note 1, at 260-64 (discussing criminal law); John Finnis, The Authority of Law in the Predicament of Contemporary Social Theory, 1 NOTRE DAME J.L. ETHICS & PUB. POL'Y 115, 117-21 (1984) (same); John M. Finnis, Law as Co-ordination, 2 RATIO JURIS 97, 101-03 (1989) (discussing the importance of law for social coordination).
23. See, e.g., FINNIS, supra note 1, at 260-64 (discussing criminal law); John Finnis, The Authority of Law in the Predicament of Contemporary Social Theory, 1 NOTRE DAME J.L. ETHICS & PUB. POL'Y 115, 117-21 (1984) (same); John M. Finnis, Law as Co-ordination, 2 RATIO JURIS 97, 101-03 (1989) (discussing the importance of law for social coordination).
24. "Moral realism" has been defined as "[t]he view that moral beliefs and judgements can be true or false, that there exist moral properties to which moral agents are attentive or inattentive, sensitive or insensitive, that moral values are discovered, not willed into existence nor constituted by emotional reactions." R.W. Hepburn, Moral Realism, in THE OXFORD COMPANION TO PHILOSOPHY 596 (Ted Honderich ed., 1995).
25. Compare John Finnis, Natural Law, in 6 ROUTLEDGE ENCYCLOPEDIA OF PHILOSOPHY 685 (1998) (emphasizing moral realism), with HITTINGER, supra note 2, at 8 (denying that Finnis is within the natural law tradition because his theory does not view "nature as in some way normative"), and WEINREB, supra note 5, at 97 (equating natural law with an objective approach to morality that is analogically based).
26. See Michael S. Moore, Law as a Functional Kind, in NATURAL LAW THEORY: CONTEMPORARY ESSAYS 188, 192 (Robert P. George ed., 1992) [hereinafter NATURAL LAW THEORY].
27. See, e.g., H.L.A. HART, ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 10 (1983) (describing Finnis's natural law theory as being "in many respects complementary to rather than a rival of positivist legal theory"); Neil MacCormick, Natural Law and the Separation of Law and Morals, in NATURAL LAW THEORY, supra note 17, at 105, 109 (describing the convergences of modern legal positivism and Finnis's natural law theory); Joseph Raz, The Morality of Obedience, 83 MICH. L. REV. 732, 739 (1985) (book review) (claiming that "it is a mistake to think that the legal positivist and the natural law traditions are inherently incompatible").
28. See, e.g., H.L.A. HART, ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 10 (1983) (describing Finnis's natural law theory as being "in many respects complementary to rather than a rival of positivist legal theory"); Neil MacCormick, Natural Law and the Separation of Law and Morals, in NATURAL LAW THEORY, supra note 17, at 105, 109 (describing the convergences of modern legal positivism and Finnis's natural law theory); Joseph Raz, The Morality of Obedience, 83 MICH. L. REV. 732, 739 (1985) (book review) (claiming that "it is a mistake to think that the legal positivist and the natural law traditions are inherently incompatible").
29. See, e.g., H.L.A. HART, ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 10 (1983) (describing Finnis's natural law theory as being "in many respects complementary to rather than a rival of positivist legal theory"); Neil MacCormick, Natural Law and the Separation of Law and Morals, in NATURAL LAW THEORY, supra note 17, at 105, 109 (describing the convergences of modern legal positivism and Finnis's natural law theory); Joseph Raz, The Morality of Obedience, 83 MICH. L. REV. 732, 739 (1985) (book review) (claiming that "it is a mistake to think that the legal positivist and the natural law traditions are inherently incompatible").
30. See, e.g., Alf Ross, Validity and the Conflict Between Legal Positivism and Natural Law, in NORMATIVITY AND NORMS: CRITICAL PERSPECTIVES ON KELSENIAN THEMES 147, 148-49 (Stanley L. Paulson & Bonnie Litschewski Paulson eds., 1998).
31. See AUSTIN, supra note 11, at 157-59; BLACKSTONE, supra note 11.
32. See Lon L. Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart, 71 HARV. L. REV. 630 (1958); H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593 (1958).
33. See Lon L. Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart, 71 HARV. L. REV. 630 (1958); H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593 (1958).
34. See HANS KELSEN, INTRODUCTION TO THE PROBLEMS OF LEGAL THEORY 7-8 (Bonnie Litschewski Paulson & Stanley L. Paulson trans., 1992) (defining "Pure Theory of the Law"); Hans Kelsen, The Idea of Natural Law, in ESSAYS IN LEGAL AND MORAL PHILOSOPHY 27-60 (Peter Heath trans., 1973) (contrasting legal positivism and natural law theory).
35. See HANS KELSEN, INTRODUCTION TO THE PROBLEMS OF LEGAL THEORY 7-8 (Bonnie Litschewski Paulson & Stanley L. Paulson trans., 1992) (defining "Pure Theory of the Law"); Hans Kelsen, The Idea of Natural Law, in ESSAYS IN LEGAL AND MORAL PHILOSOPHY 27-60 (Peter Heath trans., 1973) (contrasting legal positivism and natural law theory).
36. As the rest of this Article indicates, I think there is a real debate between legal positivism and natural law theory. At the same time, one can reasonably conclude that some of the legal positivists had a faulty perception of the debate, based on caricatured views of natural law (caricatures which may have been encouraged by the less able exponents of that view, see e.g., BLACKSTONE, supra note 11).
37. See FINNIS, supra note 1, at 3-18.
38. See HART, supra note 9, at 55-58, 82-99 (emphasizing the importance of an internal perspective in the course of analyzing habits, rules, and law); see also Brian Bix, H.L.A. Hart and the Hermeneutic Turn in Legal Theory, 52 SMU L. REV. 167 (1999).
39. See HART, supra note 9, at 98.
40. See id. at 203 ("[T] heir allegiance to the system may be based on many different considerations: calculations of long-term interest; disinterested interest in others; an unreflecting inherited or traditional attitude; or the mere wish to do as others do.").
41. See FINNIS, supra note 1, at 9-15; see also JOHN FINNIS, AQUINAS: MORAL, POLITICAL AND LEGAL THEORY 257-58 (1998). In this text, Finnis states, One "internalizes" the law when one willingly, promptly, readily - and not merely out of "extrinsic" motivations of fear of punishment or hope of reward - complies with its requirements, not only according to the letter of the law but primarily according to the lawmaker's intention and plan for common good. Such states of affairs are the central case of law because they most fully instantiate the fundamental notion of law: a prescription of reason, by means of which rational and indeed conscientious and reasonable practical judgments about the needs of a complete community's common, public good, having been made and published by lawmakers, are understood and adopted by citizens as the imperium of their own autonomous, individual practical reason and will. Id. (citations omitted).
42. See Bix, supra note 25, at 184-86.
43. Finnis, supra note 12, at 205.
44. See FINNIS, supra note 28, at 266-72; FINNIS, supra note 1, at 281-90; Finnis, supra note 12, at 196-203.
45. See, e.g., HART, supra note 18, at 55. What both Bentham and Austin were anxious to assert were the following two simple things: first, in the absence of an expressed constitutional or legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law; and, conversely, it could not follow from the mere fact that a rule was morally desirable that it was a rule of law. Id.; see also supra text accompanying note 11.
46. See, e.g., MacCormick, supra note 18, at 106 ("For long, the leading jurisprudential image of natural law theory presented it as defined by the thesis that unjust laws are necessarily non-laws.").
47. The expression is true, and indeed somewhat banal, when understood as saying that unjust law are not laws "in the fullest sense," in that they do not create moral obligations to obey them in the way that just laws do. See BIX, supra note 10, at 64-66; FINNIS, supra note 1, at 363-66; Norman Kretzmann, Lex Iniusta Non Est Lex: Laws on Trial in Aquinas' Court of Conscience, 33 AM. J. JURIS. 99 (1988).
48. See FINNIS, supra note 1, at 363-66 (discussing lex iniusta); Finnis, supra note 12, at 203-04 (accepting the disjunction of legal validity and moral evaluation).
49. The phrasing "both tenable and valuable" is meant to respond to the possible view that a theory without significant moral evaluation might be possible, but it would be a theory of little value, significantly inferior to theories which have such moral content.
50. H.L.A. Hart, Comment, in ISSUES IN CONTEMPORARY LEGAL PHILOSOPHY: THE INFLUENCE OF H.LA. HART 35, 36 (Ruth Gavison ed., 1987).
51. Hart points out, "In his books Dworkin appears to rule out general and descriptive legal theory as misguided or at best simply useless." HART, supra note 9, at 242.
52. FINNIS, supra note 1, at 3.
53. See id. at 3-19; John M. Finnis, Law, Problems of the Philosophy of, in OXFORD COMPANION TO PHILOSOPHY 468, 469 (Ted Honderich ed., 1995).
54. Finnis formulates the argument as follows: Still, cannot descriptive analysis of law's character as an instrument proceed without evaluating the diverse purposes and uses to which the instrument is put? It seems not. For law's characteristic purport as obligatory and authoritative, like its purport as stipulating appropriate procedures and requiring fair trials and judgments based on truth, itself proposes an evaluation and critique of alternative social conditions (anarchy, arbitrary domination). How, then, could there be an adequately inward understanding or analysis of what characterizes diverse legal systems - an account showing why law deserves a place in any truly general account of human social life - without an understanding of the ways law's characteristic features themselves (even when being unjustly manipulated) manifest a critical evaluation of, and value-affirming constructive response to, the sorts of injustice or other lesion of human good which are inherent in lawlessness of every kind? Finnis, supra note 40, at 469. In this position, Finnis's view converges with that of Lon Fuller. See, e.g., LON L. FULLER, THE LAW IN QUEST OF ITSELF 41 (1940) (noting "the danger of attempting to deal with conceptual entities [in jurisprudence and political theory] without reference to the ends they are intended to serve"); see also Bix, supra note 3, at 22-31 (discussing Fuller's theory). A similar point is recognized by Neil MacCormick. See MacCormick, supra note 18, at 110-18 (discussing "the essential moral aspiration of law-giving").
55. Lon Fuller, in the context of discussing the later treatment of evil actions validated by Nazi law, wrote of "the dilemma as that of meeting the demands of order, on the one hand, and those of good order, on the other." See Fuller, supra note 21, at 657. From Fuller's other writings it seems clear that he might add that it is difficult to understand the idea of "order" without having a clear notion of what "good order" is. See generally Kenneth I. Winston, The Ideal Element in a Definition of Law, 5 LAW & PHIL. 89 (1986) (discussing Fuller's approach to law).
56. On the use of teleological explanations, see generally LARRY WRIGHT, TELEOLOGICAL EXPLANATIONS (1976). Not all teleological explanations are moral. For example, it may well be that one could not properly understand a game unless one understood the players' objectives, but (for most games) these objectives have no moral status or nature. Finnis's claim is not merely that law has a particular objective or aspiration, but also that this objective or aspiration is a moral one.
57. See CICERO, The Republic bk.3, at xxii.33, in DE RE PUBLICA, DE LEGIBUS (T.E. Page et al. eds. & Clinton Walker Keyes trans., 1928) [hereinafter DE RE PUBLICA]; CICERO, The Laws bk. II., at v.11-12, in DE RE PUBLICA, supra.
58. See CICERO, The Republic bk.3, at xxii.33, in DE RE PUBLICA, DE LEGIBUS (T.E. Page et al. eds. & Clinton Walker Keyes trans., 1928) [hereinafter DE RE PUBLICA]; CICERO, The Laws bk. II., at v.11-12, in DE RE PUBLICA, supra.
59. See AQUINAS, supra note 8.
60. See HITTINGER, supra note 2.
61. See LON L. FULLER, THE MORALITY OF LAW (rev. ed. 1969).
62. For a more detailed discussion of that connection, see Bix, supra note 3.
63. To clarify, there may be other ways of claiming that morality or moral evaluation is central to understanding law or doing legal theory, and therefore there are other forms of natural law challenges to legal positivism. One prominent example may be Dworkin's theory of law. See Brian Bix, Natural Law Theory, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 223, 234-37 (Dennis Patterson ed., 1996).
64. See supra note 9.
65. See RAZ, supra note 9, at 215-16. Raz goes on to derive important aspects of his theory of law from this claim. See id. at 216-20.
66. I am aware that even here hermeneutic theorists and others have argued against a purely descriptive or otherwise value-free approach to history and the social sciences. See, e.g., PETER WINCH, THE IDEA OF A SOCIAL SCIENCE AND ITS RELATION TO PHILOSOPHY (1958) (arguing for a hermeneutic approach for social theory). 53 I have considered some of these issues elsewhere at greater length. See BIX, supra note 10, at 9-28 (discussing issues concerning conceptual questions and jurisprudence); Brian Bix, On Description and Inegal Reasoning, in RULES AND REASONING: ESSAYS IN HONOUR OF FRED SCHAUER 7 (Linda Meyer ed., 1999).
67. I am aware that even here hermeneutic theorists and others have argued against a purely descriptive or otherwise value-free approach to history and the social sciences. See, e.g., PETER WINCH, THE IDEA OF A SOCIAL SCIENCE AND ITS RELATION TO PHILOSOPHY (1958) (arguing for a hermeneutic approach for social theory). 53 I have considered some of these issues elsewhere at greater length. See BIX, supra note 10, at 9-28 (discussing issues concerning conceptual questions and jurisprudence); Brian Bix, On Description and Inegal Reasoning, in RULES AND REASONING: ESSAYS IN HONOUR OF FRED SCHAUER 7 (Linda Meyer ed., 1999).
68. See, e.g., Raz, supra note 9 (explicating ideas about conceptual analysis in legal theory, in the course of considering debates between Dworkin and Hart).
69. See Stanley L. Paulson, Introduction to KELSEN, supra note 22, at xvii, xxix-xlii (discussing Kelsen's neo-Kantian or regressive argument); see also BIX, supra note 10, at 51-59 (summarizing Kelsen's views).