Hart rejects any standard of legal validity based on moral precepts. I argue in this book that though there are … no necessary conceptual connections between the content of law and morality; and hence morally iniquitous provisions may be valid as legal rules or principles. One aspect of this form of the separation of law from morality is that there can be legal rights and duties which have no moral justification or force whatever.
Connecticut , U. The Supreme Court used its judge-made right of privacy in Griswold to strike down Connecticut birth control statutes. Eight years later, in Roe v. Wade , U. The slaughter bench of history amply illustrates the consequences of separating law from morality.
Two countries created positivist legal systems during the 20th century. The Soviet Criminal Codes of and adopted Italian positivist theory, particularly the work of Enrico Ferri These codes expressly permitted the execution and punishment of innocent parties.
Article 58 permitted authorities to punish innocent family members and innocent dependents of convicted offenders. Soviet rulers designed their legal system to control the population through terror. They succeeded. Stalin utilized the Criminal Codes to execute 3.
Stalin killed an estimated 7. Stalin intentionally starved 7. The Nazis, impressed by the effectiveness of Soviet positivism, adopted Article 1 of the Soviet Civil Code into their own positivist legal system. Article 1 permitted the government, at its discretion, to disregard all civil rights. Most of the atrocities of the Holocaust were legal under German legal positivism.
The evidence of history proves the necessity of morality in law. In my next article I will address a second fundamental legal principle, the sovereignty of law over judges.
I will close that essay by discussing how Christian universities can help restore morality and sovereignty to American law. About the Author. Tyler practiced commercial, civil rights, and toxic tort litigation in Texas for thirty-five years and is the author of multiple award winning leading articles in law journals. Natural law theory Natural law theory protects against unjust laws by maintaining a harmony of law with morality. The consequences of separating law from morality The slaughter bench of history amply illustrates the consequences of separating law from morality.
Tuition and Aid. Request Information. The project motivating conceptual jurisprudence, then, is to articulate the concept of law in a way that accounts for these pre-existing social practices.
A conceptual theory of law can legitimately be criticized for its failure to adequately account for the pre-existing data, as it were; but it cannot legitimately be criticized for either its normative quality or its practical implications. A more interesting line of argument has recently been taken up by Brian Bix Following John Finnis , Bix rejects the interpretation of Aquinas and Blackstone as conceptual naturalists, arguing instead that the claim that an unjust law is not a law should not be taken literally:.
John Finnis takes himself to be explicating and developing the views of Aquinas and Blackstone. Like Bix, Finnis believes that the naturalism of Aquinas and Blackstone should not be construed as a conceptual account of the existence conditions for law. Accordingly, an unjust law can be legally valid, but it cannot provide an adequate justification for use of the state coercive power and is hence not obligatory in the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in the concept of law.
An unjust law, on this view, is legally binding, but is not fully law. Finnis distinguishes a number of equally valuable basic goods: life, health, knowledge, play, friendship, religion, and aesthetic experience. Each of these goods, according to Finnis, has intrinsic value in the sense that it should, given human nature, be valued for its own sake and not merely for the sake of some other good it can assist in bringing about.
Moreover, each of these goods is universal in the sense that it governs all human cultures at all times. The point of moral principles, on this view, is to give ethical structure to the pursuit of these basic goods; moral principles enable us to select among competing goods and to define what a human being can permissibly do in pursuit of a basic good.
Thus, Finnis sums up his theory of law as follows:. Nevertheless, Finnis believes that to the extent that a norm fails to satisfy these conditions, it likewise fails to fully manifest the nature of law and thereby fails to fully obligate the citizen-subject of the law. Like Finnis, Lon Fuller rejects the conceptual naturalist idea that there are necessary substantive moral constraints on the content of law.
But Fuller, unlike Finnis, believes that law is necessarily subject to a procedural morality. Insofar as human activity is essentially purposive, according to Fuller, particular human activities can be understood only in terms that make reference to their purposes and ends. Thus, since lawmaking is essentially purposive activity, it can be understood only in terms that explicitly acknowledge its essential values and purposes:.
The only formula that might be called a definition of law offered in these writings is by now thoroughly familiar: law is the enterprise of subjecting human conduct to the governance of rules. Unlike most modern theories of law, this view treats law as an activity and regards a legal system as the product of a sustained purposive effort Fuller , And to be capable of performing this function, a system of rules must satisfy the following principles:. A system of rules that fails to satisfy P2 or P4 , for example, cannot guide behavior because people will not be able to determine what the rules require.
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 these moral principles are built into the existence conditions for law, they are internal and hence represent a conceptual connection between law and morality.
Thus, like the classical naturalists and unlike Finnis, Fuller subscribes to the strongest form of the Overlap Thesis, which makes him a conceptual naturalist. Second, Fuller identifies the conceptual connection between law and morality at a higher level of abstraction than the classical naturalists. The classical naturalists view morality as providing substantive constraints on the content of individual laws; an unjust norm, on this view, is conceptually disqualified from being legally valid.
Poisoning is no doubt a purposive activity, and reflections on its purpose may show that it has its internal principles. But insofar as such standards of efficacy conflict with morality, as they do in the case of poisoning, it follows that they are distinct from moral standards.
For example, public promulgation in understandable terms may be a necessary condition for efficacy, but it is also a moral ideal; it is morally objectionable for a state to enforce rules that have not been publicly promulgated in terms reasonably calculated to give notice of what is required.
Similarly, we take it for granted that it is wrong for a state to enact retroactive rules, inconsistent rules, and rules that require what is impossible. Poisoning may have its internal standards of efficacy, but such standards are distinguishable from the principles of legality in that they conflict with moral ideals. As Fuller would likely acknowledge, the existence of a legal system is consistent with considerable divergence from the principles of legality.
Legal standards, for example, are necessarily promulgated in general terms that inevitably give rise to problems of vagueness.
And officials all too often fail to administer the laws in a fair and even-handed manner even in the best of legal systems. These divergences may always be prima facie objectionable, but they are inconsistent with a legal system only when they render a legal system incapable of performing its essential function of guiding behavior.
Insofar as these principles are built into the existence conditions for law, it is because they operate as efficacy conditions and not because they function as moral ideals. The Social Fact Thesis asserts it is a necessary truth that legal validity is ultimately a function of certain kinds of social facts; the idea here is that what ultimately explains the validity of a law is the presence of certain social facts, especially formal promulgation by a legislature. On this view, the criteria that determine whether or not any given norm counts as a legal norm are binding because of an implicit or explicit agreement among officials.
Thus, for example, the U. Constitution is authoritative in virtue of the conventional fact that it was formally ratified by all fifty states. In deciding hard cases, for example, judges often invoke moral principles that Dworkin believes do not derive their legal authority from the social criteria of legality contained in a rule of recognition Dworkin , p.
In Riggs v. Palmer , for example, the court considered the question of whether a murderer could take under the will of his victim. Despite this, the court declined to award the defendant his gift under the will on the ground that it would be wrong to allow him to profit from such a grievous wrong. Accordingly, Dworkin concludes that the best explanation for the propriety of such criticism is that principles are part of the law.
Dworkin believes that a legal principle maximally contributes to such a justification if and only if it satisfies two conditions: 1 the principle coheres with existing legal materials; and 2 the principle is the most morally attractive standard that satisfies 1. The correct legal principle is the one that makes the law the moral best it can be. There are, thus, two elements of a successful interpretation.
First, since an interpretation is successful insofar as it justifies the particular practices of a particular society, the interpretation must fit with those practices in the sense that it coheres with existing legal materials defining the practices.
Aquinas says that the fundamental principle of the natural law is that good is to be done and evil avoided ST IaIIae 94, 2. This is, one might say, a principle of intelligibility of action cf.
Grisez : only action that can be understood as conforming with this principle, as carried out under the idea that good is to be sought and bad avoided, can be understood as an intelligible action. But no one can in acting simply pursue good — one has to pursue some particular good. And Aquinas holds that we know immediately, by inclination, that there are a variety of things that count as good and thus to be pursued — life, procreation, knowledge, society, and reasonable conduct ST IaIIae 94, 2; 94, 3 are all mentioned by Aquinas though it is not clear whether the mentioned items are supposed to constitute an exhaustive list.
The important task, then, is to identify the ways in which an act can be intrinsically flawed. An act might be flawed through a mismatch of object and end — that is, between the immediate aim of the action and its more distant point. Aquinas has no illusions that we will be able to state principles of conduct that exhaustively determine right conduct, as if for every situation in which there is a correct choice to be made there will be a rule that covers the situation.
But he denies that this means that there are no principles of right conduct that hold everywhere and always, and some even absolutely. These are only examples, not an exhaustive list of absolutely forbidden actions. His natural law view understands principles of right to be grounded in principles of good; on this Aquinas sides with utilitarians, and consequentialists generally, against Kantians.
But Aquinas would deny that the principles of the right enjoin us to maximize the good — while he allows that considerations of the greater good have a role in practical reasoning, action can be irremediably flawed merely through e. The natural law view rejects wholesale particularism. To summarize: the paradigmatic natural law view holds that 1 the natural law is given by God; 2 it is naturally authoritative over all human beings; and 3 it is naturally knowable by all human beings.
Further, it holds that 4 the good is prior to the right, that 5 right action is action that responds nondefectively to the good, that 6 there are a variety of ways in which action can be defective with respect to the good, and that 7 some of these ways can be captured and formulated as general rules.
Aquinas was not the only historically important paradigmatic natural law theorist. Thomas Hobbes, for example, was also a paradigmatic natural law theorist. There are also a number of contemporary writers that affirm the paradigmatic view. These writers, not surprisingly, trace their views to Aquinas as the major influence, though they do not claim to reproduce his views in detail.
Recently there have been nontheistic writers in the natural law tradition, who deny 1 : see, for example, the work of Michael Moore , and Philippa Foot There were a number of post-Thomistic writers in the medieval and modern periods who in some way denied 2 , the natural authority of the natural law, holding that while the content of the natural law is fixed either wholly or in part by human nature, its preceptive power could only come from an additional divine command: the views of John Duns Scotus, Francisco Suarez, and John Locke fit this mold.
Arguably the Stoics were natural law thinkers, but they seem to deny 4 , holding the right to be prior to the good see Striker Hallett have taken up the natural law view with a consequentialist twist, denying 6. For a discussion of the relationship between proportionalism and natural law theory see Kaczor There is of course no clear answer to the question of when a view ceases to be a natural law theory, though a nonparadigmatic one, and becomes no natural law theory at all.
Even within the constraints set by the theses that constitute the paradigmatic natural law position, there are a number of variations possible in the view.
Here we will consider several issues that must be addressed by every particular natural law view, and some difficulties that arise for possible responses to these issues. It is essential to the natural law position that there be some things that are universally and naturally good. But how is universal, natural goodness possible?
Given the variability of human tastes and desires, how could there be such universal goods? Natural law theorists have at least three answers available to them. The first answer is Hobbesian, and proceeds on the basis of a subjectivist theory of the good. One might think that to affirm a subjectivist theory of the good is to reject natural law theory, given the immense variation in human desire.
But this is not so. This is in fact what Hobbes claims. For while on the Hobbesian view what is good is what is desired, Hobbes thinks that humans are similarly constructed so that for each human when he or she is properly biologically functioning his or her central aim is the avoidance of violent death. Thus Hobbes is able to build his entire natural law theory around a single good, the good of self-preservation, which is so important to human life that exceptionlessly binding precepts can be formulated with reference to its achievement.
The second answer is Aristotelian. So what is good for an oak is what is completing or perfective of the oak, and this depends on the kind of thing that an oak is by nature; and what is good for a dog is what is completing or perfective of the dog, and this depends on the kind of thing that a dog is by nature; and what is good for a human depends on what is completing or perfective of a human, and this depends on the kind of thing a human is by nature.
So the fact of variability of desire is not on its own enough to cast doubt on the natural law universal goods thesis: as the good is not defined fundamentally by reference to desire, the fact of variation in desire is not enough to raise questions about universal goods.
This is the view affirmed by Aquinas, and the majority of adherents to the natural law tradition. The third answer is Platonic.
Like the Aristotelian view, it rejects a subjectivism about the good. But it does not hold that the good is to be understood in terms of human nature. The role of human nature is not to define or set the good, but merely to define what the possibilities of human achievement are. So one might think that some things — knowledge, beauty, etc. None of these answers is without difficulties. The Platonic version of the view has struck many as both too metaphysically ornate to be defensible, on one hand, and as not fitting very well with a conception of ethics grounded in nature, on the other.
While the Aristotelian version of the view has also been charged with some of the metaphysical excesses that the Platonist view allegedly countenances, most contemporary natural law theory is Aristotelian in its orientation, holding that there is still good reason to hold to an understanding of flourishing in nature and that none of the advances of modern science has called this part of the Aristotelian view into question.
For defenses of such Aristotelian accounts of the good, see Foot , Thompson , and Thompson Another central question that the natural law tradition has wrestled with concerns our knowledge of the basic goods. How can we come to know these fundamental goods? His account of our knowledge of the fundamental goods has been understood in different ways Murphy , ch. Lisska One can imagine a Hobbesian version of this view as well.
Hobbes in fact produces such arguments at [EL], I, 7. While a natural law theorist might downplay the importance of derivationist knowledge of the natural law, it is hard to see how a consistent natural law theorist could entirely reject the possibility of such knowledge, given the view that we can provide a substantial account of how the human good is grounded in nature: for to show that the human good is grounded in nature is to show that human nature explains why certain things are goods, and it is hard to see how one could affirm that claim while entirely rejecting the possibility of derivationist knowledge of the human good see Murphy , pp.
The most that this can show, though, is that the natural law theorist needs an account of those bridge truths that enable us to move between claims about human nature and claims about human goods. It must be conceded, however, that a consistent natural law theorist could hardly hold that derivationist knowledge of the human good is the only such knowledge possible. For it is part of the paradigm natural law view that the basic principles of the natural law are known by all, and the sort of arguments that would need to be made in order to produce derivationist knowledge of the human good are certainly not had or even have-able by all.
Recently Jensen has offered a thorough defense of a derivationist account that aims to take such worries into account. So human beings exhibit a tendency to pursue life, and knowledge, and friendship, and so forth; and reflection on this tendency occasions an immediate grasp of the truth that life, and knowledge, and friendship, and so forth are goods.
While inclinationism and derivationism are distinct methods, they are by no means exclusive: one can hold that knowledge of fundamental goods is possible in both ways.
Indeed, it may well be that one way of knowing can supplement and correct the other. There may be some goods that are easier to recognize when taking the speculative point of view, the point of view of the observer of human nature and its potentialities, and some that are easier to recognize when taking the practical point of view, the point of view of the actively engaged in human life.
Indeed, by connecting nature and the human good so tightly, the natural law view requires that an account of the good reconcile these points of view. There are, of course, reasons to be worried about both of these ways of knowing basic goods — worries that go beyond general skeptical doubts about how we could know any normative truths at all. Derivationists have to explain how we come to know what counts as an actualization of a human potency, and have to explain how we connect these via bridge principles with human goods.
Inclinationists have their own troubles. In particular, they need to deal with the fact that, even if they are not in the business of deriving goods from inclinations or identifying the goods precisely with what we tend to pursue, they take as their starting point human directedness.
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