## 1. Enabling positivity: social facts made reasons for action




The fulcrum and central question of natural law theories of law is:
How and why can law, and its positing in legislation, judicial
decisions, and customs, give its subjects sound reason for acting in
accordance with it? How can a rule's, a judgment's, or an
institution's legal ("formal," "systemic")
validity, or its facticity or efficacy as a social phenomenon (e.g.,
of official practice), make it authoritative in its subject's
deliberations? 




The sense and force of these questions, and the main features of the
kind of answer given by natural law theories, can be given a
preliminary indication. On the one hand, natural law theory holds that
law's "source-based character"--its dependence upon
social facts such as legislation, custom or judicially established
precedents--is a fundamental and primary element in
"law's capacity to advance the common good, to secure human
rights, or to govern with integrity" (cf. Green and Adams 2019).
On the other hand (cf. Green 2003), the question "whether
law is of its very nature morally problematic" has from the
outset been the subject of consideration by leaders of the tradition.
(The first issue that Aquinas takes up about human law in his set-piece
discussion of law, *Summa Theologiae*, I-II, q. 95 a. 1, is
whether human law [positive law] is beneficial--might we not do
better with exhortations and warnings, or with judges appointed simply
to "do justice", or with wise leaders ruling as they see
fit? And see I.3 below.) Classic and leading contemporary texts of
natural law theory treat law as morally problematic, understanding it
as a normally indispensable instrument of great good but one that
readily becomes an instrument of great evil unless its authors
steadily and vigilantly make it good by recognizing and fulfilling
their moral duties to do so, both in settling the content of its rules
and principles and in the procedures and institutions by which they
make and administer it. Natural law theories all understand law as a
remedy against the great evils of, on the one side anarchy
(lawlessness), and on the other side tyranny. And one of tyranny's
characteristic forms is the co-optation of law to deploy it as a mask for
fundamentally lawless decisions cloaked in the forms of law and
legality.


### 1.1 Basic reasons for action and the need for governmental authority




If one thinks perceptively and carefully about what to pursue (or
shun) and do (or forbear from), one can readily understand and assent
to practical propositions such as that life and health, knowledge, and
harmony with other people are desirable for oneself and anyone
else. The intrinsic desirability of such states of affairs as one's
flourishing in life and health, in knowledge and in friendly relations
with others, is articulated in foundational, underived principles of
practical reasoning (reasoning towards choice and action). Such first
principles of practical reasoning direct one to actions and
dispositions and arrangements that promote such intelligible goods,
and that directiveness or normativity is expressed by "I
should..." or "I ought..." in senses which
although truly normative are only incipiently moral.




A natural law moral theory will give an account of the way in which
first principles of practical reason take on a moral force by being
considered, not one by one but in their united
("integral") directiveness. That integral directiveness is
given specific (albeit highly general) articulation in principles such
as the injunction to love one's neighbor as oneself; or the Golden
Rule of doing for others what you would want them to do for you and
not doing to others what you would not have them do to you; or the
"categorical imperatives" to respect, and treat as
intrinsically valuable, humanity (the basic aspects of human
flourishing) in oneself and in others, so that each of one's
communities is treated as a kingdom of ends--of persons each
ends in themselves. Such high-level but far from contentless moral
principles can be given further specificity in two ways (1) by
identifying what, given some broadly stable features of human reality,
they entail (see 1.2-4), and (2) by a rational but more or less
non-deductive selection among alternative specifications, a selection
named by Aquinas *determinatio* (plural,
*determinationes*) (see 1.5). Political communities
are a kind of institution whose rational status as a normally
desirable and obligatory objective of and context for collaborative
action (and forbearance) can easily be seen to be entailed by the
foundational practical and moral principles. In such communities, the
normal means for making the needed *determinationes* is the
institution of governmental authority acting in the first instance
through legislation and other forms of law-making, i.e., acting as a
social-fact source of positive (posited) law.




The political-theoretical part of natural law theory explains and
elaborates the grounds and proper forms of governmental authority. It
explains the similarities and differences between the practical
authority of rulers (including democratic electors acting as selectors
of representatives or as plebiscitary decision-makers) and the
theoretical authority of experts and persons of sound judgment. It
shows the grounds for instituting and accepting practical authority as
an almost invariably necessary means for preventing forms of harm and
neglect which, because contrary to the high-level moral principles (at
least as they bear on relationships between persons), involve
injustice. Political theory subsumes, as one of its branches, legal
theory. As legal theory, political theory explains the normal
desirability that governmental authority in political communities be
exercised within the framework of (in the classic slogan) a
"rule of law and not of men" (1.3).


#### 1.1.1 Why "natural" law? Naturalistic fallacy?




What does the mainstream of natural law theory intend by using the
word "natural" in that name for the theory? The shortest
accurate answer is "of reason," as in "the law of
reason" or "the requirements of reason." Aquinas is
particularly clear and explicit that in this context,
"natural" is predicated of something (say, a law, or a
virtue) only when and because that of which it is predicated is in
line with reason, practical reason, or practical reason's
requirements: see Finnis 1980, 35-6. Moreover, he employs,
through all his works, a methodological axiom: *X*'s nature is
understood by understanding *X*'s capacities, which are
understood by understanding their act[uation]s, which are understood
by understanding their objects. But the objects of chosen acts are the
intelligible intrinsic goods (aspects of human flourishing) which we
are directed to by practical reason's first principles. So the
equation, in this context, of "natural" and
"rational" and its cognates is no mere confusion, but
grounded in a sophisticated distinction between ontology and
epistemology: in the order of being, what is good and reasonable for
us is a resultant of what is foundational, our given nature; but in
the order of coming to know, our knowledge of our nature is in
significant part a resultant of our understanding of what kinds of
possible objects of choice are good.




Though the core of classic and mainstream natural law theory is thus
untainted by any "naturalistic fallacy" (Finnis 2018,
2.4.2), non-practical knowledge of facts counts, in that theory, in
various ways. Knowledge of the factual possibility of (say) acquiring
knowledge, or of losing or saving life, is a datum (not really a
premise) for the understanding that such a possibility is also an
opportunity--that actualizing the possibility would be
*good* for oneself and others. Other kinds of relevant facts
include the facts about certain human radical capacities and their
absence in other animals--these facts are the data for the
insight into the sense and bounds of the class (persons, human beings)
of "others" in "good for oneself and others."
Or again, facts about the limited supply of resources and the limited
strength of human will (the need for incentives, etc.) make (1.5)
appropriation of resources to particular owners a normal requirement
of justice to non-owners and owners alike.


### 1.2 Political authority as remedy for anarchy, injustice and impoverishment




The texts that are earliest (e.g., the Platonic or pseudo-Platonic
*Minos*: Lewis 2006) and most foundational (e.g., Plato's
*Gorgias, Republic* and *Laws*, and Aristotle's
*Politics*) in the tradition of natural law theory remind their
readers of the evident evils of anarchy: a condition of things in
which no person or body of persons efficaciously claims or is accepted
widely as having authority to restrict the use of violence, theft and
fraud, and in which any conventional norms of conduct are made hollow
by irresolvable disputes about their content and/or their
application. In such a state of affairs, the more strong, cunning and
ruthless prey on the less, education of children (which calls for
resources outside the family) is difficult to accomplish, and economic
activity remains stunted by the insecurity of holdings and the
unreliability of undertakings. There is evident need for persons who
will articulate and enforce standards of conduct which will tend to
promote the common good of bodily security, stable access to
resources, cooperation in economic and educational activities, and
rectification (by punishment, compensation and restitution) of at
least the grosser inter-personal injuries of commission and
neglect. To articulate that need is to state the reasons for
instituting and supporting political authority, notably state
government and law, on condition that these institutions carry on
their legislative, executive and judicial activities substantially for
the common good of the inhabitants of the relevant territory, rather
than in the interests of a segment of the population unfairly
indifferent or hostile to the interests and wellbeing of other
segments.


### 1.3 Rule of law as remedy for the dangers in having rulers




Aristotle (*Politics* III.15.1286a-IV 4 1292a) vigorously
debates the question whether political authority is better exercised
through a "rule [primacy, supremacy] of law" or "a
rule of men," say of one best person, or a democratic assembly,
or indeed (*Rhetoric* I 1 1354a32-b16) a court. He takes
his arguments to suggest the answer that in almost all societies, on
almost all occasions and issues, it is preferable that government be
by or in accordance with law, since (i) laws are products of reason(s)
not passion(s), (ii) the sovereignty of a ruler or assembly tends to
tyranny (i.e., rule in interests of a section, not common good), (iii)
equality demands that each mature person have some share in governing,
and (iv) rotation of offices and office-holders is desirable and can
hardly be managed without legal regulation. So for Aristotle, the
central case of practical authority is government of a *polis*
by law and legally regulated rulers.




Thomas Aquinas' account of human positive law treats the central
case of government as the self-government of a free people by the
rulers and institutions which that people has appointed for that
purpose, and the central case of law is the co-ordination of willing
subjects by law which, by its public character (promulgation),
clarity, generality, stability and practicability, treats those
subjects as partners in public reason (*Summa Theologiae* I-II
q. 90 a. 4c; q. 95 a. 3c; q. 96 a. 1; q. 97 a. 2). For he defines law
as universal (in the logician's sense of "universal")
practical propositions conceived in the reason of the ruler(s) and
communicated to the reason of the ruled so that the latter will treat
those propositions, at least presumptively, as reasons for 
action--reasons as decisive for each of them as if each had conceived
and adopted them by personal judgment and choice.




Lon Fuller 1969, acknowledging Aquinas' lead in this discussion of
formal and procedural aspects of legal system, pulls together Aquinas'
scattered and fragmentary remarks about them into an orderly list of
eight elements of *the rule of law*, that is of *la*
*primaute du droit*, the legal system of a
*Rechtsstaat*. He shows that these hang together as a set of
desiderata (or requirements) because they are implications or
specifications of the aspiration and duty to treat people as
presumptively entitled--as a matter of fairness and
justice--to be ruled as free persons, fundamentally the equals of
their rulers, not puppets or pawns to be managed and kept in order by
manipulation, uncertainty, fear, etc. The normal result of such
fairness in the procedures of making and maintaining the law will be
to strengthen the law's efficacy, too. Unfortunately, the surface of
Fuller's text gives more prominence to effectiveness than to fairness,
and many critics (e.g., Hart, Dworkin), overlooking the moral
connotations of Fuller's allusions to *reciprocity* between
rulers and ruled, thought his book's title, *The Morality of
Law*, a misnomer. This thesis has been elaborated more carefully
and on a different basis by Raz 1979 and Kramer 2004a and 2004b:
although the rule of law (and compliance with it) can be morally
important and even a moral virtue (because normally necessary for
fully just government in a just society, and especially for
alleviating dangers that arise from the existence of political
authority, and of law itself), it is nonetheless in itself morally
neutral since (in states which employ the forms of law) it will
normally be needed even by deeply unjust rulers for advancing their
immoral purposes. It is like a sharp knife, whose sharpness makes it
apt for life-saving surgery but equally for stealthy callous murders
(Raz 1979, 224-6).




Finnis 1980 (273-4) and Simmonds 2004, 2005, 2006, 2007 have
challenged the quasi-empirical claim that even vicious tyrants need or
find it apt, for the efficacy of their domination, to comply with the
requirements of the rule of law. The eighth of Fuller's elements of
the rule of law, viz. adherence by the rulers to their own rules in
their conduct of government, is especially obstructive, rather than
supportive, of a tyranny's purposes. But the focus of Fuller's
concern, and the most fruitful locus of debate, is not so much on
historical or sociological phenomena or causalities as on the
"internal," practical reasons at stake. If the rulers
somewhere do not respect the rights and interests of some of their
subjects in relation to issues of substance (life, bodily security,
freedom, property, and so forth), why should the rulers--what
reason have they to--respect their subjects' rights or interests
in the matters of procedure involved in the rule of law (giving them
fair notice of what is expected of them, and adhering as rulers to the
promulgated law when assessing these subjects' conduct and in other
governmental dealings with those subjects)? A more or less
inconsistent willingness of rulers to tie their own hands by
scrupulous adherence to procedural justice while yet being
substantively unjust, is of course psychologically possible. But
Fuller's primary concern, like that of the wider tradition of natural
law theory, is with rationality and the specific implication of fully
coherent reasonableness: *morally* reasonable judgment and
choice.


### 1.4 *Ius gentium--ius cogens--mala in se*--human rights: legal rules and rights posited because morally necessary parts of any legal system




Fuller offered a merely procedural natural law theory, though he did
not deny that a substantive natural law theory is possible and
appropriate. And indeed there is no sufficient reason to follow him in
restricting the range of practical-theoretical reflection on what is
needed for a political society worthy of the self-restraints and
acceptance of responsibilities that the law requires of those to whom
it applies. For it is clear that the procedures and institutions of
law are in the service of substantive purposes: the restriction of
violence, theft and fraud, the recovery of things misappropriated from
their lawful owners or possessors, and of losses wrongfully imposed,
protection of intangible goods such as reputation against unwarranted
defamation, and of the immature, the mentally disabled and other
vulnerable people against sexual or other exploitation, and so forth.





That portion of our positive law which consists of legal principles or
rules giving effect to purposes such as those just listed was often
named, by natural law theories, *ius* [or *jus*]
*gentium*. Minted by jurists of classical Roman law such as
Gaius (c. 165 AD), this name--literally "the law of
peoples"--alludes to the set of rules and principles found
in similar if not identical forms in virtually all legal systems. The
reason for their ubiquity is, generally speaking, that any reasonable
consideration of what it takes for individuals, families and other
associations to live together in political society, tolerably well,
will identify these principles and rules as necessary. In modern law
they are picked out, in principle, by names such as "the general
principles of law recognized by civilized nations" (Statute of
the International Court of Justice, art. 38), *ius
cogens erga omnes* (literally "law that is
compelling [obligatory without agreement or enactment or other forms
of adoption] in relation to [for/on, 'against']
everyone"), "higher law", or "fundamental
human rights." In Aquinas's theory of law, they are referred to
as *conclusions* (entailments) of the very highest-level, most
general moral principles. In the common law tradition, the legal
wrongs picked out by such principles have been called *mala in
se*, as distinct from *mala prohibita*--things wrong
in themselves as distinct from things wrong only because prohibited by
(positive) law--and this distinction remains, for good reason, in
use in judicial reasoning.




Some legal theories speak of these principles and rules as belonging
to law by a kind of "conceptual" necessity. Hart (1961)
can be so read. But even Hart's account, on closer examination,
identifies the relevant necessity not as conceptual or linguistic but
as an instance of the rational necessity of means needed to secure
purposes which are non-optional. It was for this reason that Hart
spoke of them as constituting "the minimum content of natural
law." He would have expressed his own meaning more perspicuously
had he spoken instead of "the minimum content of positive law,
the minimum set of principles which, because rationally necessitated
--given certain fundamental 'truisms' about human
nature and the human predicament--for the securing of purposes
shared by all survivable human societies, can be called natural
law." The fact is that these elements of our law are both
positive (made and part of official practice) and natural (rationally
required for at least minimal human flourishing).



 
These issues are discussed further in Section 3 below.


### 1.5 "Purely positive law": *determinationes* and their legal-moral authority for citizens and judges (facts made reasons for action)




Natural law theory of law has its most distinctive characteristic in
its account of purely positive law which, though
"entirely" dependent for its legal status on the fact that
it has been authoritatively posited by some persons(s) or institution,
nonetheless shares in law's characteristic of entailing--albeit
presumptively and defeasibly--a moral obligation of
compliance. About these rules of a positive legal system, Aquinas says
that, though they certainly should be, and be presumed to have been,
"*derived* from natural law", they have their legal
force *only* from their part in this posited system (*ex
sola lege humana vigorem habent*: *ST* I-II, q. 95
a. 3).




His explanation, slightly updated: this very large part of our law
could reasonably have been different, in the way that every detail of
a maternity hospital could have been somewhat different and large
portions of the design could have been very different, even though
some features (e.g., that the doors and ceilings are more than two feet
high) are entailed by the commission to build a town maternity
hospital, and every feature has *some* rational connection with
the commission. The kind of rational connection that holds even where
the architect has wide freedom to choose amongst indefinitely many
alternatives is called by Aquinas a *determinatio* of
principle(s)--a kind of concretization of the general, a
particularization yoking the rational necessity of the principle with
a freedom (of the law-maker) to choose between alternative
concretizations, a freedom which includes even elements of (in a
benign sense) arbitrariness.




Once the *determinatio* is validly made, fulfilling the
criteria of validity provided by or under the relevant legal system's
constitutional law, it changes the pre-existing state of the law by
introducing a new or amended legal rule and proposition(s) of law. The
new or amended legal rule gives judges, other officials, and citizens
a new or amended reason for action (or forbearance). The fact that the
new or amended rule depends upon the social-fact source constituted or
employed by the act of *determinatio* does not entail that a
normative reason (an "ought") is being illogically derived
from a bare fact (an "is"). Rather, the new or amended
rule is normative, directive and (where that is its legal meaning )
obligatory because that social fact can be the *second* premise
in a practical syllogism whose first premise is normative:
"there ought to be a maternity hospital in this town,"
"people ought to be protected against homicidal assault,"
"people ought to be required to contribute to the public
expenses of appropriate governmental functions", "victims
of assault, theft, broken contracts, negligence, etc., ought to be
compensated," "road traffic should be regulated to reduce
damaging collisions," and so forth. The moral normativity of the
principle is replicated in the more specified rule created by the
*determinatio*, even though the latter is not an entailment of
the former. 




That is to say: the concretized rule is (morally as well as legally)
normative because such normativity is (presumptively and defeasibly)
*entailed* by the (moral) principle that the common good (whose
fundamental content is given by the foundational principles of
practical reason: 1.1) requires that authoritative institutions take
action to specify, apply and enforce some rules on the relevant
matters. Social facts make a positive legal rule a reason for action
because the desirability of authority as a means of securing common
good, and the desirability of the "rule of law and not of
men," are standing and potent reasons for acknowledging such
facts as an instance of valid legislation giving presumptively
sufficient reason for compliance. Purely positive law that is legally
valid is (presumptively and defeasibly) valid and binding 
morally--has the moral form or meaning of *legal 
obligatoriness*--when and because it takes its place in a scheme of practical
reasoning whose proximate starting point is the moral need for justice
and peace, and whose more foundational starting-point is the range of
basic ways in which human wellbeing can be promoted and protected, the
way picked out in practical reason's first principles.




Thus, in relation to the settled positive law, natural law
theory--as is acknowledged by a number of legal positivists,
(e.g., Raz 1980, 213; Gardner 2001, 227)--shares the principal
thesis of contemporary legal positivists, that laws depend for their
existence and validity on social facts.


#### 1.5.1 "Presumptive" and "defeasible" obligatoriness




The legal-moral obligation or obligatoriness of a legal rule is
counterpart to the legal-moral authority or authoritativeness of its
author (enacter) or other source. The idea of authority has been
clarified by contemporary legal theorists such as Raz and Hart, by
reflection upon the kind of reasons for action purportedly given to
potentially acting subjects by an exercise of practical authority. The
relevant kind of practical reason has been variously called
exclusionary, peremptory or pre-emptive, and content-independent. The
core idea is that subjects are instructed to treat the proffered
reason (say, a statutory provision, or a judicial order), in their
deliberations towards choice and action, as a reason which does not
simply add to the reasons they already have for acting one way rather
another, but rather excludes and takes the place of some of those
reasons. And this exclusionary, peremptory or pre-emptive force is
owed not to the inherent attractiveness to reason of the (content of
the) proffered reason, but to the status of its author or other source
as one entitled--for example, by its role in a constitutional
scheme of governance for the solution of a political community's
coordination problems--to be obeyed, complied with, treated as
authoritative. See e.g., Raz 1986, 35-69. This
content-independence of authoritative reasons entails their
presumptive obligatoriness. The defeasibility of that presumption is
entailed by the dependence of such reasons' peremptory, pre-emptive or
exclusionary force upon a background of presupposed basic human needs
and goods, and of basic moral principles and norms, a background which
entails that if a purportedly authoritative proffered (posited) reason
conflicts sufficiently clearly with those standing needs, goods,
principles or norms its exclusionary force is exhausted or overcome
and the purported obligatoriness defeated.




Less abstractly put, both the effectiveness of laws as solutions to
coordination problems and promoters of common good, and the fairness
of demanding adherence to them, are dependent upon their being treated
both by the subjects and the administrators of the legal system as
legally and morally entitled, precisely as validly made law, to
prevail against all other reasons save competing *moral*
obligations of greater strength. It is this entitlement that is
negated by the serious injustice of a law or legal system: see 3 and 4
below.


## 2. Human persons are not law's creatures but its proper point




Talk of human flourishing's or wellbeing's aspects, and of principles
of practical reason, should not be allowed to distract attention from
an important truth, implicit both in classical Greek and Roman
philosophical and juristic treatments of justice and in modern
juristic attributions of human rights. Indeed, the Universal
Declaration of Human Rights (1948) links the two traditions of
discourse by placing at the head of its articulation of human rights
the core ("all human beings are born free and equal in dignity
and rights") of the Roman juristic saying (*Institutes*
1.2.2) that "by nature, from the outset, all human beings were
born free and equal," a saying about *iustitia*, justice
as a ground and standard for *ius*, law. The same Roman law
texts, promulgated as permanent law by Justinian 533-535 AD,
state more than once that law's point (its "final"
*causa*, explanatory reason) is the human persons for whose
sake it is made, that is, *all* human persons until the time
when the *ius gentium*, the common law of peoples, was
distorted by wars and slavery. Law, fit to take a directive place in
practical reasoning towards morally sound judgment, is for the sake of
human persons: all the members of the community regulated by that law
and all other persons within that law's ambit.




That thesis falls within those parts of legal theory that are
acknowledged but not much explored by contemporary legal
positivists. It was ignored and in effect denied by earlier forms of
legal positivism more ambitious to cover the whole of legal
philosophy, e.g., Kelsen's. Kelsen denied that persons were known
either to law or to a proper legal theory or science of law, except
insofar as they were made the subject of a posited legal rule. But
against this restriction, which has misled some courts which have
treated Kelsenian legal science as a guide to judicial reasoning, it
can be said (Finnis 2000) that the fundamental equality and dignity of
human beings should defended as part of a rationally sound
understanding (concept) of law. This defense requires an account of
the difference between capacities which are activated here and now, or
are more or less ready to be so actuated, and *radical*
capacities such as exist in the epigenetic primordia of even very
young human beings, and in the genetic and somatic constitution of
even the severely disabled. Though such an account makes possible a
defense of the fundamental equality of human beings, and thus a
humanist legal theory, the point of the account is not to privilege a
biological species as such, but to affirm the juridical significance
of the status of persons--substances of a rational
nature--as inherently the bearers (*subjects*) of
rights of a kind different and more respect-worthy and
*end*-like than the rights which are often, as a matter of
technical *means*, attributed by law to animals, idols, ships
or other *objects* of legal proceedings.


## 3. Legal principles to remedy defective positive law


### 3.1 Adjudicating between exclusive and inclusive legal positivism




The so-called positivist thesis that all law depends for its existence, validity
and obligatoriness on its social-fact source(s) is often accompanied,
as in Raz's "exclusive legal positivism" (Raz 1980,
212-24; Raz 1985), by the thesis that judges, as the
"primary law-applying institutions," have a duty (moral,
if not also legal) to decide certain sorts of case (e.g., cases where
the existing legal rule would by work injustice) by
applying *moral* principles or rules which warrant amending or
even abandoning part of the existing law. "Inclusive"
legal positivists temper this by holding that the judicial duty and
authorization to depart from existing law by applying moral rules or
principles is restricted to those classes of case where an existing
social-fact sourced legal rule directs the court do so; the effect of
such a directive, it is said, is to include within the legal system
the moral rules or principles (if any) thus pointed to.




Natural law theory concurs with Raz and Gardner in rejecting the
inclusivist restriction as ungrounded, but dissents from them in
holding (as Dworkin does too: Dworkin 1978, 47) that any moral rule or
principle which a court is bound to apply (or reasonably can apply), precisely as
a court, can reasonably be counted or acknowledged as a law, i.e., as a
rule or principle which should be considered already part of our
law. Against positivists generally, it holds that (i) little or
nothing turns on whether or not moral principles binding on courts
precisely as courts should be called part of our law; but (ii) if
something does turn on the name--if, for example, it be
recalled that courts cannot "take judicial notice" of any
rule or principle not "part of our law" (and so, as in
respect of rules of foreign law, have to hear evidence of the rule's
existence and content)--it is sounder to say that judicially
applicable moral rules and principles (unlike applicable foreign law)
are *ipso iure* (i.e., precisely as morally and judicially
applicable) rules *of law*. Such rules belong to the *ius
gentium* portion of our law.




Does this amount to acknowledging that natural law theory is
significantly less concerned than contemporary legal positivist
theories to establish the precise boundaries and content of the
social-fact sourced (posited, purely positive) law of our community?
Not really. For (i) contemporary legal positivist theories have
abandoned the thesis of "classical" legal positivists such
as Bentham that judges and citizens alike should (as a matter of
political-moral obligation) comply with the positive law of their
community: their treatises or essays on legal theory explicitly or
implicitly commend to judges as much as citizens the Hartian
"This is law; but it is too iniquitous to be applied or
obeyed" (Hart 1961, 203; 1994, 208) rather than the Benthamite
"Under a government of laws ... obey punctually and ...
censure freely" (Bentham 1776); so the concern of contemporary legal positivists to distinguish
posited law from other standards for sound and legitimate adjudication
turns out, in the last analysis (and despite appearances), to be
merely provisional. And on the other hand (ii) natural law theories
hold as strongly as any positivist theory that sound and legitimate
adjudication gives priority to a conscientious and craftsmanlike
attention to social-fact sources and to rules and principles pedigreed
by such sources, sets them aside only if and to the extent that they
are "too iniquitous to be applied", and tailors the
resultant new rule so as to cohere as far as possible with all the
other (not too iniquitous) doctrines, rules and principles of the
particular legal system in which the judge has jurisdiction.


#### 3.1.1 A test case: the Nuremberg question




The persons known as major German war criminals were tried in 1945 for
offenses specified in an agreement ("the London Agreement and
Charter of 8 August 1945") made between the states governing
Germany since its surrender to them. The judges held that the
defendants had at all relevant times been bound by (and in many
instances had acted in violation of) the principles or rules specified
in the London Charter, such obligations being derived not, of course,
from the agreement (which was made subsequent to the acts in
question), but rather, as to some of the crimes alleged, from
international law and, as to the alleged "crimes against
humanity," from the "elementary dictates of
humanity." To hold the defendants responsible for violating
these rules and dictates, and reject any argument that their acts'
compliance with German law could make them lawful acts, was not (so
the tribunal ruled) to violate the principle of law and justice that
no one should be punished except for violation of *law*.




The result of these rulings might be accounted for (i) by exclusive
positivism: the tribunal was morally authorized to apply moral rules,
notwithstanding that the rules so applied were not rules of law either
at the time of the crimes or the time of the prosecution. But the
*terms* of the rulings (as just summarized) can be accounted
for (ii) by inclusive positivism: the Charter was positive law for the
tribunal and directed it to apply moral rules which by virtue of that
legal direction were also legal rules. Still, (iii) natural law
theory's account seems the most explanatory: the moral rules applied
were also rules of the "higher law" applicable in all
times and places (and thus in Germany and its territories, before as
after the Charter) as a source of argumentation and judgment
"according to law" when the social-fact sources which are
the normally dominant and quasi-exclusive source of law are, in
justice, inadequate and insufficient guides to fulfilling obligations
such as the judicial obligation to do justice according to law, or
everyone's obligation to behave with elementary humanity even when
under orders not to--even if those orders have intra-systemic
legal validity according to the formal or social-fact criteria of some
existing legal system. And if one has doubts about victors' justice,
those very doubts can likewise appeal to principles of the same higher
law, *ius gentium*, or law of reason and humanity.


### 3.2 Natural law and (purely) positive law as concurrent dimensions of legal reasoning




Natural law theory of law thus finds itself, in this respect,
approximated to by Ronald Dworkin's account of law and adjudication,
not only in frontier situations like Nuremberg but also in the
day-to-day working of a sophisticated legal system. Normal
adjudication and judicial reasoning has two dimensions or criteria for
distinguishing correctness from incorrectness in judgments. One
dimension comprises social-fact sources (statutes, precedents,
practice, etc.), called by Dworkin "legal materials." The
other dimension comprises moral standards, presumptively those
prevalent in the judge's community but in the last analysis just those
standards that the judge can accept as in truth morally sound. An
interpretation of our law which is morally sounder will be legally
correct even if it fits the legal materials less closely than
alternative interpretations, provided that it fits those social-fact
sources "enough." The moral standards thus applied, which
Dworkin (in line with natural law theory) treats as capable of being
morally objective and true, thus function as a direct source of law (or justification for judicial decision)
and, in a certain sense, as already law, except when their fit with
the whole set of social-fact sources in the relevant community is so
weak that it would be more accurate (according to Dworkin) to say that
judges who apply them are applying morality not law (and thus, if they
said they were applying law, would be mistaken or lying--a lie
which Dworkin considers sometimes commendable). Dworkin 1978,
326-7, 340. 




A theory of law which, unlike Dworkin's, places itself plainly in the
tradition of natural law theorizing will be likely to depart from
these positions in two ways. (i) It will not accept Dworkin's thesis
that even in very hard cases there is one uniquely correct answer in
law; it will deny his assumption that there is a uniquely correct and
rationally identifiable measure of how much fit with existing legal
materials (social-fact sources) is "enough" (necessary and
sufficient) to license using moral standards to identify the legally
correct interpretation of the law. In the absence of such a single
measure, legal reasoning must often--and in very hard cases,
usually--be content to show that two or three alternative
interpretations are distinguished from an indefinitely large number of
other interpretations by being correct, that is, not wrong (albeit not
*uniquely* correct). (ii) When judges, in order to avoid grave
injustice, depart from the settled understanding of the law (and
perhaps from the clear terms of a decree) and apply an alternative,
morally mandated interpretation, regarding themselves as licensed to
do so by the higher law of reason, nature and humanity, they need not
be lying if they say that in doing so they are both rectifying
*and* applying the law (of their state). See 4 below.


### 3.3 Implications of the rule-of-law need for positivity




In line with Dworkin's two-dimensions account (thus qualified),
natural law theory will assent to the thesis that Green makes
characteristic of legal positivism:



> 
> 
> [1] the fact that a policy would be just, wise, efficient, or prudent
> is never sufficient reason for thinking that it is actually the law,
> and [2] the fact that [a law] is unjust, unwise, inefficient or
> imprudent is never sufficient reason for doubting [that it is
> law].




For as to [1]: what the rule of law and not of men calls for is the
institution of legal *system*, a *corpus iuris*, and so
what a principle of morality (natural law) or *ius gentium*
implies would be an appropriate rule of law is, nevertheless, not yet
a part of our law--still less is a mere "policy"
made law by being "prudent" or
"efficient"--unless its content, conceptualization and form
are so shaped, whether in judicial or other juristic thinking or in
judgment or legislation, as to *cohere* with the other parts
(especially neighboring parts) of our law. 




As to [2]: A natural law theory, mindful of the normal desirability of
a rule of law and not of judges (see 1.3), may well be more cautious
than Dworkin himself is in departing from the settled (social-fact
source-based) law. On those occasions where such a departure is
morally warranted, the theory will suggest that the judge is
authorized to proceed according to the higher and perennial law of
humanity, the *ius gentium* or set of universal principles of
law and justice common to all civilized peoples, which deprives
settled law--more precisely, what has been accepted in the
jurisdiction as being settled law--of its directiveness for
subjects and judges alike. Is this moral authorization also
'legal' and "according to law"? Is the
settled law which the judge is morally authorized to set aside thereby
being treated, even prior to the judge's handing down of judgment, as
not law? The following section argues that that question should be
answered both Yes and No.


## 4. "*Lex iniusta non est lex*"? Do seriously unjust laws bind? Legally?




In such a case, does the law as settled by social-fact sources, in
losing its directiveness for judges and citizens, lose also its legal
validity? The answer depends upon the discursive context in which the
question arises. If a course of reflection or discourse makes it
appropriate to acknowledge the rule's "settled" or
"posited" character as cognizable by reference to
social-fact sources, one can say that it is legally valid though too
unjust to be obeyed or applied. Or if the discursive context makes it
appropriate instead to point up its lack of directiveness for judges
and subjects alike, one can say that the rule, despite its links to
social-fact sources, is not only not morally directive but is also
legally invalid. Each way of speaking tells an important part of the
truth, or rather, tells the truth with an emphasis which differs from
the other's.



 
The meaning of "an unjust law is not a law" is essentially
identical to Hart's "This is law but too iniquitous to be
applied or obeyed" (or availed of as a defense). The excitement
and hostility aroused amongst modern legal theorists (notably Hart) by
the former way of speaking is unwarranted. No one has difficulty in
understanding locutions such as "an invalid argument is no
argument," "a disloyal friend is not a friend,"
"a quack medicine is not medicine," and so
forth. "*Lex iniusta non est lex*" has the same
logic; it acknowledges, in its opening words, that what is in question
*is* in certain important respects--perhaps normally and
presumptively decisive respects--*a law*, but then in
its withdrawal or denial of that predicate it affirms that, since
justice is the very point of having and respecting law at all, this
particular law's deficiency in justice deprives it of the decisive
significance which all law purports to have. It is thus law only in a
sense that should be judged--especially when law is regarded, as
by Hart himself, as a kind of reason or purported reason for 
action--to be a distorted and secondary, non-central sense.



> 
> 
> Note: Classical political theory, as expounded by Plato, Aristotle and
> Aquinas, makes regular use of this distinction between central and
> perverted or otherwise marginal instances of an analogical concept or
> term, and so Aquinas never says simply "unjust law is not
> law" but rather "unjust law is not straightforwardly or
> unqualifiedly [*simpliciter*] law" or "is a
> perversion of law", and similar statements. Still, he does
> elsewhere say that "an unjust judgment [of a court] is not a
> judgment" and it seems clear that he might similarly have used
> the simplified or slogan-form locution, about law, as short-hand. 
> 
> 




All this seems to have been overlooked by Hart in his polemic (Hart
1961, 204-7; 1994, 208-12) against "*lex iniusta
non est lex*." Hart's argument that use of the slogan must
tend to discourage or confuse the moral critique of law seems
historically and logically indefensible. The slogan is unintelligible
save as an expression of and incitement to engaging in such critiques;
it can scarcely be rejected without first misquoting it, as Hart and
those who employ his argument almost invariably do, averting their
gaze from the slogan's first predication and implied assertion: that the
unjust rule in question is a rule of *law*.




Some theories have adopted certain main tenets of natural law theory,
and professed to be natural law theories, but have asserted that even
the most unjust laws create an obligation to obey which is both legal
and moral. Kant's (see Alexy 2002, 117-121) is such a theory: a
legal system can consist entirely of positive law but must be
"preceded by a natural law that establishe[s] the legislator's
authority...to bind others simply by his arbitrary action."
But this purported natural-law basic norm looks not to the justice of
the content of the posited legal rules, but exclusively to the need
for legal certainty and civic peace, which Kant takes to exclude any
right to resist unjust laws and any denial that they are fully
legal. Alexy has pointed out the confusions and inconsistencies in
Kant's attempts to evade the classic position that laws whose
injustice is sufficiently grave can and should be denied to have the
legal character predicable of laws that citizens and courts, precisely
as courts, are morally and juridically entitled to treat as--or
as if they are--not law. In this as in many other respects,
seventeenth and eighteenth century philosophical developments (like
their twentieth and twenty-first century counterparts) were not so
much progress as regress. But precisely how the classic position
itself should be formulated, explained and applied today is debated
between Alexy, Finnis and others (Alexy 2013; Finnis 2014; Crowe 2019).


## 5. Can general theories of law be value-free? moral-value-free?




Descriptions of the valuations made by particular persons or societies
can of course be value-free. Doubtless the historian, detective or
other observer thinks there is some value in making the investigation
and resultant description, but that valuation in no way need enter
into the description. Still less need the description either approve
or disapprove of the valuations which it reports. But the situation
is different if one's aspiration is to offer a *general*
account of human practices or institutions, such as *law*,
friendship, constitutions, and so forth. Here one confronts the
necessity of selecting and prioritizing not merely the investigation
itself but rather some one set of concepts (and corresponding terms)
from among (or over and above) the range of terms and concepts already
employed in the self-understanding of the individuals and groups under
(or available for) study.




Where the subject-matter of the projected descriptive *general*
account is some practice or institution devised by (more or less
adequate exercises of) reason, and addressed to the rational
deliberations of individuals and groups, there will normally be no
good reason not to prioritise those forms of the practice or
institution which are more rational, more reasonable, more responsive
to reasons, than other forms of the "same" or analogous
practices and institutions. The standard for assessing reasonableness
for this theoretical purpose is, in the last analysis, the set of
criteria of reasonableness that the descriptive theorist would use in
dealing with similar practical issues in his or her own life.




This necessity of value-laden selection of concepts and terms for use
in a general theory of social realities such as law is evidenced in
the work of Max Weber, prophet of "value-free" social
science. His account, for example, of forms of domination
(*Herrschaft*) identifies three pure, central, characteristic
types (*Idealtypen*): charismatic, traditional, and rational
(bureaucratic, legal). But the accounts of the first two types are
almost entirely in terms of how they differ from the rational type,
whose rationality is self-evident to Weber and his readers on the
basis of their own knowledge of human goods (basic aspects of human
wellbeing) and related practical truths. See Finnis 1985,
170-72. Natural law theory, as one sees it practiced already in
Aristotle's *Ethics* and *Politics*, makes these
valuations by the theorist overt and explicit (not hidden and
embarrassed), and subjects them to rational scrutiny and debate.




Raz, Dickson, and others accept that some such valuation is necessary,
but deny that it is moral: Dickson 2001. But once one begins to deal
in reasons, can anything other than good reasons count? If moral
reason is nothing more than practical reason at full stretch, fully
critical and adequate as reason, moral reasons will have a decisive
place in concept-formation in social science including descriptive
general theory of law. And this will not have the effect feared by
Hart, viz. of leaving the study of wicked laws or institutions to some
other discipline: Hart 1961, 205; 1994, 209. On the contrary, they are
a subject of lively attention in such a theory, precisely because of
their opposition to legal systems of a (substantively and
procedurally) morally good kind. Aristotle's *Politics*, though
not methodologically flawless overall, is a primary witness to this
sort of clear-eyed acknowledgment and depiction of unreasonable social
forms, practices and institutions within a descriptive theory oriented
by the moral judgments of the theorist.



 
Still, descriptive social theory is only a subordinate aspect of
natural law theories of law. Their primary focus is typically on
identifying the conditions under which law is justified, both in the
sense in which law can and should be preferable to anarchy or tyranny
or even benevolent "rule of men," and in the sense in
which this or that legal principle, institution or rule can be judged
to be preferable to alternative reasons or purported reasons for
action. As Green 2003 says:



> 
> 
> Evaluative argument is, of course, central to the philosophy of law
> more generally. No legal philosopher can be *only* a legal
> positivist. A complete theory of law requires also an account of what
> kinds of things could possibly count as merits of law (must law be
> efficient or elegant as well as just?); of what role law should play
> in adjudication (should valid law always be applied?); of what claim
> law has on our obedience (is there a duty to obey?); and also of the
> pivotal questions of what laws we should have and whether we should
> have law at all. Legal positivism does not aspire to answer these
> questions, though its claim that the existence and content of law
> depends only on social facts does give them shape.




Might it not be better to say: no legal philosopher need, or should,
be a legal positivist? For law's dependence upon social facts is
fully acknowledged, and also accounted for, in natural law theories of
law. And this is not a "concession" by natural law
theorists, for their main positions were clearly articulated by
Aquinas, many centuries before legal positivism emerged with its
challenge to (what it took to be) natural law theory. Positivist
critiques of natural law theory, when they do not rest upon scepticism
about the possibility of moral judgment, a scepticism implicitly
disavowed in the above passage, rest on misunderstanding of passages
from the works of natural law theorists. On such misunderstandings,
see Finnis 1980, 23-55; Soper 1992.




Again: How could such fundamental questions as "Should we have
law at all?" be "given shape" by the positivist
thesis that law's existence and content depends only on social facts?
Does not Green's claim invert the reasonable order of inquiry and
reflection? Basic human needs and circumstances powerfully suggest to
people in virtually all times and places that they should make and
uphold some norms of the kind we call law, norms which will depend
directly and for the most part on social facts such as custom,
authoritative rule-making, and adjudication. Legal philosophy retraces
and clarifies, critically, that elemental practical reasoning,
somewhat as Hart did in Hart 1961, where he constructs a
descriptive-explanatory account of law (i.e., refines his and our
concept or understanding of law) by explaining how rules differ from
habits, how powers have different functions and social value from
obligations and so are not aptly reducible to obligations (and so also why power-conferring rules are distinct from duty-imposing rules), and how
"primary" rules for outlawing gross violence, theft and
fraud *need*, by reason of their lack of certainty in content
and application and their immobility, to be supplemented by
"secondary" rules of recognition, adjudication and change,
the remedial supplementation that shifts a society into the domain and
rule of law and legal system. May not those elements in Hart's book be
taken as an instance of natural law legal theory done in a primarily
descriptive (rather than primarily justificatory) mode, and with
incomplete scrutiny of the resources of practical reason, resources
being drawn upon by the whole explanatory general description of law?
Does not Hart's description, despite its incompleteness, work as well
as it does precisely because it disinters some elementary
*justifications* conceived and put to use by the people whose
activities provide the material for the descriptions? Does he not
share the deep methodology of Aristotle and the natural law tradition
(Finnis 2003) in making his identification of *what* law is (of
"the concept of law") depend upon his account of
*why* law is a reasonable response to common human needs?



Again, the question perhaps most central to a general theory of law,
namely whether law can have a nature, and if so whether it is to be
understood on the model of artefacts, or alternatively by study of concepts
("conceptual analysis"), seems to tackled with most
explicitness and attention to different and related kinds of
subject-matter by theorists working in the philosophical tradition
that is or concerns the topic of this entry: Murphy 2015; Finnis
2020.



None of this is to say that a sound legal theory of the kind explained
in this entry need be called "natural law theory." Like
all philosophy, it should be done by considering propositions, not
labels.


## 6. Other elements of natural law theory




Intended to be part of a comprehensive theory of practical reasons
that are fit to direct us to the common good of each of our
communities and its members, any natural law theory of law brings to
bear on law all the theses proposed and defended in natural law
theory's moral and political parts and in a sound understanding of the
human makeup and of the lasting characteristics of our circumstances.
So, besides the questions listed by Green as quoted in section 5
above, issues such as the following three (see others in Finnis 2002)
are treated by natural law theory as integral to legal science, theory
or philosophy.


### 6.1 Intention in action and utterance




Rules of law are propositions of practical reason, apt for being taken
as directive in the deliberations of law's individual subjects towards
judgment, choice (decision), and action (including chosen
forbearance). So a sound theory of law will have an integrated and
critical understanding of the structure of chosen action, particularly
of the relationships between the intending of ends, the adoption of
means, the dual character of almost all ends as also means, and of
almost all means as also ends, and the necessity and normal
possibility of freely choosing between options which embody or promise
benefits and disadvantages incommensurable (incompletely
commensurable) (Finnis 1997) with the benefits and disadvantages of
the alternative options. Such an understanding will clarify the often
somewhat crude accounts given in criminal law dogmatics (case law and
textbooks) of *actus reus* and*mens rea*, accounts which
often fail to distinguish been action as a physically or
conventionally demarcated chunk of behavior and action as the carrying
out of the choice of an option, that is of a proposal shaped and thus
given a privileged description in the deliberations of the acting
subject. The difference between intended or chosen means (or ends) and
foreseeable or even fully foreseen effects
("side-effects"), like the consequent difference between
the moral and, presumptively, legal standards applicable respectively
to intended and not-intended effects, is psychologically and morally
real. But it is often distorted by a simplistic legal dogmatics too
averse to the (very real) risk that defendants will prevaricate about
what they had in mind. What counts, and can often be inferred despite
prevarication, is the act-description under which the behavior chosen
was attractive to the defendant in his or her actual deliberations (as
distinct from rationalizing act-descriptions adopted to present that
motivation in a better light).




The reality of intention in the distinct but related field of
communication of meaning will also be explored and defended by a
natural law theory of law. This does not involve an unqualified and
simple originalism in constitutional interpretation, or a simple
denial of the characteristic insistence of legal dogmatics that the
intention of the parties to agreements or declarations is to be
ascertained "objectively (not subjectively)," that is, by
reference to what a reasonable observer would have taken the statement
in issue to mean. For: such an observer (and thus the
"objective" viewpoint) will presumptively have given
primacy in this interpretation to what (as far as the observer can
discern in the circumstances of the statement's making [= utterance])
the statement's author actually ("subjectively") meant (=
intended to express/state).


### 6.2 Responsibility and punishment




Criminal responsibility (guilt) is primarily for acts and consequences
intended by the offender. Liability for negligence is relatively
exceptional in modern criminal law, though the predominant form of
liability in modern law of compensation ("civil
law"). (The duties and standards of care used to attribute
tortious/delictual/civil liability are in part straightforwardly moral
and in part conventional--in neither part are they securely
source-based in the sense of sources given unconditional primacy in
legal positivism.)




The legal enunciation of rules of criminal law (mostly
"prohibitions") has as its primary goal the elimination or
at least discouraging of the specified kinds of action (or
omission). In this phase of the legal institution of criminal law and
punishment, the goal can be called deterrence. The fact that this goal
works partly by enforcement and application of the threatened sanction
in the event of violation and conviction does not, however, entail
that deterrence is the formative or even the primary end of
punishment. Indeed, the institution of punishment has its primary
sense and justification, not in deterrence, but in the restoration of
that presumptively fair balance of burdens and advantages which
offenders upset, precisely in choosing to prefer their own purposes
and advantage to restraining their action so as to avoid violating the
law. In preferring that self-preferential option, offenders help
themselves to an advantage over all who do restrain themselves so as
to respect the law. The offenders thereby upset the presumptively fair
balance of advantages and burdens between themselves and the
law-abiding. The primary purpose of punishment thus can reasonably be
to restore that disturbed balance by depriving convicted offenders of
their unfairly gained advantage--excess freedom of 
action--by imposing upon them measures, punishments, whose precise
purpose is to restrict their freedom of action, whether by fines or
imprisonment, proportionately to the degree to which they indulged
their self-preference. Punishment in that way seeks to ensure that,
over the span of time running from before the offence to the
undergoing of the penalty, no one gains an advantage over fellow
citizens by offending.




Thus, while compensation in civil law (tort, delict, etc.) rectifies
the disturbed balance of advantages and burdens as between tortfeasors
and their *victims*, punishment in criminal (penal) law
rectifies the relationship between offenders and all the
*law-abiding members* of the community. This retributive
justification (general justifying aim) of punishment explains why
mental competence and *mens rea* are standard legal
pre-conditions of criminal guilt and liability to punishment. It is
compatible with concurrent goals of deterrence, protection and reform,
as bonus side-effects of the retributive sentence, and as organizing
aims of specific measures and features e.g., of a prison regimen. It
both presupposes and reinforces the reality that the political
community in question stands to offenders and law-abiding alike as
*our community*.


### 6.3 Each legal system is of and for a particular political community




Examination of (i) how one legal system becomes independent of another
by lawful processes and (ii) how parts of a legal system (e.g., its
constitution, or its rules for identifying office-holders) are
replaced by the unlawful processes of *coup d'etat* or
revolution demonstrates (see Raz 1979, 100-109) that the
identity of a subsisting legal system as one and the same system of
legal norms cannot be explained (or even coherently described) by an
account which refers only to the norms and their inter-relationships
as validating norms and validated norms. The non-momentary identity of
a legal system is a function of the subsisting identity of the
community whose legal system it is. Legal theory is sub-alternated to
the historical understanding (including self-understanding) of a
community and its members as being *this
community*--paradigmatically, this nation-state--rather
than some accidental sequence or agglomeration of persons and events,
and this understanding must be in some substantial measure
non-dependent upon the legal norms that the community may succeed in
constituting for itself and its members. Doubtless the shared purpose
of living together under a rule of law, and the shared memory of a
shared acknowledgment or recognition of such laws as our laws, are
normally important components of such a shared understanding of
political-communal and legal identity. But other shared purposes,
memories and dispositions to act must be also be substantially
present, if the phenomena of lawful independence and revolutionary
constitutional change are to be as they are.




The not uncritical realism of natural law theory, evidenced in its
approach to the realities of intention as distinct from foresight and
inattention, and of self-preferential choice and the differing
relationships between (i) offender and law-abiding and (ii) tortfeasor
and victim, similarly enables it to undertake a critical reflection,
within legal theory broadly understood, on the kinds of community
capable of sustaining and being ordered in part by a legal system.