Issues

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Natural Law Theory

Accepts that law can be considered
and spoken of both as a sheer social
fact of power and practice, and as a
set of reasons for action that can be
and often are sound as reasons and
therefore normative for reasonable
people addressed by them. This dual
character of positive law is
presupposed by the well-known
slogan Unjust laws are not laws.

Legal Positivism
emphasizes the conventional nature
of lawthat it is socially constructed.
According to legal positivism, law is
synonymous with positive norms,
that is, norms made by the legislator
or considered as common law or case
law. Formal criteria of laws origin,
law enforcement and legal
effectiveness are all sufficient for
social norms to be considered law.
Legal positivism does not base law
on divine commandments, reason, or
human rights.

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 beings 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

The positivist thesis that all law

depends for its existence, validity
and obligatoriness on its social-fact
source(s) is often accompanied, as in
Raz's exclusive legal positivism, 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

Content

behave in a way that conforms to

their rational nature. Thus, Aquinas
derives the moral law from the
nature of human beings (thus,
natural law).

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.

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
legality, it follows, on Fullers 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
conceptual connection between law
and morality that is inconsistent with
the separability thesis.

argues that the principal

distinguishing feature of a legal
system is the presence of a
sovereign who is habitually obeyed
by most people in the society, but
not in the habit of obeying any
determinate human superior

Dworkin argues that, in deciding hard

cases, judges often invoke legal
principles that do not derive their
authority from an official act of
promulgation (Dworkin 1977, p. 40).
These principles, Dworkin believes,
must be characterized as law
because judges are bound to
consider them when relevant. But if
unpromulgated legal principles
constitute law, then it is false, contra
the pedigree thesis, that a
proposition of law is valid only in
virtue of having been formally
promulgated.
There is, however, a second kind of
disagreement that Dworkin believes
is inconsistent with positivism.
Lawyers often agree on the facts
about a rules creation, but disagree
on whether those facts are sufficient
to endow the rule with legal
authority. Such disagreement is
considerably deeper than empirical
disagreement as it concerns the
criteria for legal validity-which,
according to positivism, are
exhausted by the rule of recognition.
Dworkin calls this second kind of
disagreement theoretical

law and morality are conceptually

distinct. This abstract formulation
can be interpreted in a number of
ways. For example, Klaus Faber
(1996) interprets it as making a
meta-level claim that the definition
of law must be entirely free of moral
notions. This interpretation implies
that any reference to moral
considerations in defining the related
notions of law, legal validity, and
legal system is inconsistent with the
separability thesis.
The set of these valid legal rules is
exhaustive of the law, so that if
someones case is not clearly
covered by such a rule . . . then that
case cannot be decided by applying
the law. It must be decided by some
official, like a judge, exercising his
discretion, which means
reaching beyond the law for some
other sort of standard to guide him in
manufacturing a fresh legal rule or
supplementing an old one

disagreement about the law.

Theoretical disagreement, on
Dworkins view, is inconsistent with
the pedigree thesis because the
pedigree thesis explains the concept
of law in terms of shared criteria for
creating, changing and adjudicating
law:
If legal argument is mainly or even
partly about [the properties that
make a proposition legally valid],
then lawyers cannot all be using the
same factual criteria for deciding
when propositions of law are true and
false. Their arguments would be
mainly or partly about which criteria
they should use. So the project of the
semantic theories, the project of
digging out shared rules from a
careful study of what lawyers say
and do, would be doomed to fail
(Dworkin 1986, p. 43).