Part II Natural law

2. Classical and Modern Natural Law Theory

Introduction
From the time of the ancient Greeks up until the 16th or 17th centuries, there really was only one kind of
‘legal theory’ – natural law. The essence of this legal theory was that the law must be understood as a
practical application of morality; hence law and morality are intimately connected. Accordingly, much of
natural law theory sought to show how legal authorities such as princes, states and so on, could lay down
laws which reflected the true dictates of morality, and were, therefore, just.

Freeman explains that natural law has afforded a moral justification for existing social and economic
systems and their legal systems (para. 2-001). If it is argued that what ‘is’ the law is based on a higher law
dictated by reason and therefore is also what the law ‘ought’ to be, positive law acquires a sanctity that
puts it beyond question. This may sounds somewhat conservative.

Natural rights similarly had its origin sanctifying property and the existing order – in Locke’s version of the
social contract. Yet the emphasis on human equality and the revolutionary potential of natural rights that
manifested itself in the American and French revolutions in the late 18th century led to diminished respect
for natural law and natural rights during the 19th century. Natural law thinking revived in the aftermath of
the Second World War and the horrors of the Holocaust.

Why is natural law no longer the only theory of law? In a word, the answer is positivism. Legal positivists
deny that the law is simply a matter of ‘applied’ morality. Positivists note that many legal systems are
wicked, and that what is really required by morality is controversial. For example, some people view a
woman’s right to have an abortion as an essential human right, while others think of it as tantamount to a
right to murder. Yet the law carries on, laying down rules for behaviour, even when the rules are immoral,
or when no one can demonstrate to the satisfaction of all whether a rule is moral or not. What positivists
conclude from this is that the law is a kind of social technology which regulates the behaviour of its subjects
and resolves conflicts between them. The law has no necessary moral character.

The philosophy of law, then, according to positivists, is the philosophy of a particular social institution, not
a branch of moral or ethical philosophy. In working through this chapter, you must always bear in mind this
positivist challenge, and ask yourself whether natural law theory is capable of responding to positivism
while keeping its character as a plausible moral philosophy.

Learning Outcomes
By the end of this chapter and the relevant reading, you should be able to:

▪ Describe the origins of natural law in ancient Greece and Rome and the basic ideas which
inform the natural law tradition.
▪ Explain the natural law theory of Aquinas, in particular the relation of natural law to divine law
and human law, and the importance of the distinction between specificatio and determinatio
in the generation of law.
▪ Explain Finnis’s modern natural law theory, in particular his employment of the ‘focal meaning’
or ‘central case’ to determine the subject matter of legal theory, his reference to self-evident
basic values, and his characterisation of practical reason.
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▪ Explain in detail Fuller’s ‘inner morality of law’.

▪ Critically assess these various versions of natural law theory in light of the attack on natural
law by legal positivists.

Core Text
Freeman, Chapter 2 ‘Natural law’.
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2.1 The Rise of Natural Law in Ancient Greece and Rome

The term ‘natural law’ is misleading, for it sounds as if it denotes some kind of theory of the law, a
‘natural’ one, whatever that is. It does not. Originally, ‘natural law’ was a general moral theory which
explained the nature of morality, not the nature of law per se. The basic idea was that man,1 using
his reason, and possibly with the help of the revelation of the gods or God, could come to understand
how he should act rightly in respect of his fellow man. This morality of reason and revelation was a
morality which purported to take account of man’s nature, hence the title ‘natural’. And because
this combination of revelation and reason laid down rules for behaviour, the word ‘law’ seemed
appropriate, hence ‘natural law’. Natural law, then, is principally a theory of morality in general, not
a theory of law.

But part of the project of acting rightly was the project of rulers who laid down law for their subjects,
and so the claims of natural law morality applied just as much to them as to individuals generally. A
part of natural law (obviously a very important part) explained what it was to rule and legislate and
judge cases rightly; so part of natural law was the morality of ‘law’, narrowly construed as the laws
passed by legislation and the legal system of courts, judges and so on. Nowadays, ‘natural law’ is
generally taken to mean only that part of the original moral theory which explains the way that the
law, narrowly construed, operates as part of the broader moral life of human beings. As we shall
see, however, John Finnis emphasises that the philosophy of law is continuous with general moral
or ethical philosophy. That narrowing of focus has to do with the way in which the nature of morality,
as explained by natural law theory, was drawn upon to justify existing legal authorities.

It has been argued that in small, close-knit, primitive societies, the inhabitants make no distinction
between what is morally right and the way they think it right to do things. They do not stand outside
their own practices, looking at them from an external standpoint to judge whether they are correct
or not; rather, they just ‘do what comes naturally’, typically treating their rules as timeless and
revealed and enforced by the gods. Whatever the truth of this quasi-anthropological assertion, it is
clear that when different cultures come into contact and are forced to live with each other, a clash
of customs will almost certainly occur. The philosophical tradition that began with Socrates, Plato,
Aristotle and the Stoics, and was carried via Rome throughout the West, was faced with this sort of
conflict, as the different city states and empires sought to provide workable rules which might
govern everyone within their jurisdictions. This philosophical tradition made one of its central
questions ‘How ought a man to live?’, and the answer was sought not in the particular customs or
practices of particular cultures, but in our common nature.

The obvious advantage of this approach was that, if successful, all subjects of the state or empire
could appreciate the resulting rule of behaviour as appropriate to each of them, rather than
constituting the imposition of odd and foreign practices against which they would naturally rebel.
Different philosophers adopted different ways of explaining the common nature of man/humans
that might deliver a common morality. Very briefly and roughly, Plato believed that those who were
properly philosophically instructed might come to grasp – perhaps always imperfectly – the true form
or idea of ‘justice’, and other absolute values. For Aristotle, it was essential to understand man’s telos
(goal, or purpose), which reflected his nature; in particular, Aristotle thought that man was social,
political and sought knowledge, and only when in a position to fulfil these aspects of his nature could

1 The word ‘man’ is used here deliberately. Many writers are generally discussing men and not women. Aristotle makes the distinction.
Some mean ‘human’. The distinction is important if this is representing partial ‘nature’ or ‘morality’. For further interest, you may wish to
consider Okin, S.M. Women in Western political thought. (Princeton, NJ: Princeton University Press, 2013 [ISBN 9780691158341]. See also
Chapter 12 of the module guide.
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man flourish and achieve the ‘good life’. The Stoics2 accorded primacy to man’s reason – by reason
man could determine those precepts of right conduct which transcended particular cultures, and
therefore were universally applicable. The ‘law on the books’ that most directly resulted from this
intellectual activity was the jus gentium, which started life as a second-class legal order, a stripped-
down Roman civil law which applied to foreigners, but which came to be regarded as a higher or
superior legal order, in some sense akin to international law, a kind of common law of citizens which
applied throughout the Roman Empire. The single most important theoretical issue which this
philosophical tradition generated, and which forms the core issue of the natural law tradition today,
is how this critical, universalistic perspective is properly to be employed to judge the laws of any
particular society. In its most extreme form, one can adopt the Latin maxim lex injusta non est lex,
that is, an unjust law (unjust, that is, according to natural law) does not count as a law, is not a law.
Thus if the legislature passed a statute that required everyone to kill their first-born, then such a
statute would not have the force of law at all. Notice this point very carefully: the claim is not that
such a statute would provide a very wicked law, but that even though it was validly passed, the
statute would provide no law at all, just because the content of the statute was so at odds with
natural law.

This most extreme version of the force of natural law theory has been a primary target of positivists;
for the positivist, such a statute, assuming it was validly passed, would provide for a perfectly valid
law, wicked though it was. One might be morally obliged to disobey such a law, but it would be a
law just the same. In just this way, says the positivist, the dictates of morality can be distinguished
from the dictates of the law. In the face of this criticism, very few natural lawyers defend the
connection of morality and law as being quite so intimate as this. One of this chapter’s tasks is to
critically examine the different ways in which natural law theorists explain the connection between
law and morality. But notice straightaway that you are not a natural lawyer simply because you
believe you can criticise the law for being out of step with morality. Everyone believes that. It is a
common examination mistake to state something along the lines that ‘…only natural lawyers judge
the law by moral standards’. This is incorrect. Legal positivists do criticise immoral laws. They simply
do not deny that an immoral law is a law. The arch-positivist of the modern era, Jeremy Bentham,
was a dedicated social reformer who forcefully attacked the laws of England throughout his life. In
doing so, however, he attacked them as bad laws, and did not claim that they were non-laws
because they were bad. The principal task of natural lawyers, since the rise of legal positivism, has
been to show a more plausible connection between law and morality. This would need to be a more
robust connection than simply saying that one can criticise the law for being immoral.

Self-Assessment Questions
1. What is natural law a theory of?
2. Why is natural law called ‘natural law’?
3. Why does natural law theory pay attention to the law of particular states?
4. What is the jus gentium, and why is it related to the rise of natural law?
5. What does ‘lex injusta non est lex’ mean? Why is this statement regarded as an extreme
expression of natural law?

2 Stoics: an ancient Greek school of philosophers who believed, among other things, that the mind is a
‘blank slate’, upon which sense-impressions are inscribed. It may have a certain activity of its own, but
this activity is confined exclusively to materials supplied by the physical organs of sense.
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Activity 2.1
Read Freeman, Chapter 2 ‘Natural law’, extract by Cicero3 ‘De republica’, para. 2–018 and answer
the following:

Cicero says: ‘And it is not only justice and injustice that are distinguished naturally, but in general
all honourable and disgraceful acts. For nature has given us shared conceptions and has so
established them in our minds that honourable things are classed with virtue, disgraceful ones
with vice. To think that these things are a mere matter of opinion, not fixed in nature, is the mark
of a madman.’ He also says: ‘And there will not be different laws at Rome and at Athens, or
different laws now and in the future, but one eternal and unchangeable law will be valid for all
nations and all times, and there will be one master and ruler, that is, God, over all of us, for he is
the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing
from himself and denying his human nature, and by reason of this very fact he will suffer the worst
penalties, even if he escapes what is commonly considered punishment.’

Are all the ideas Cicero puts forward in these passages about the nature of natural law consistent
with each other?

Feedback: see end of guide. Jurisprudence and legal theory 2 Classical and modern natural law
theory page 15

Summary
The natural law tradition arose as the application of a theory of morality which emphasised man’s
common moral nature as underlying the legitimacy of states. The question of the legitimacy of states
and their laws became politically important when empires sought to rule over different peoples with
different customs, and so natural law seemed ideally placed to provide a universal standard of
justice. Different natural law theories arose, however, which did not agree on what the universal
basis of morality was; some emphasised human beings’ intellect or reason, others their purpose,
others revelation of God’s will.

Reminder of Learning Outcomes

By this stage you should be able to:
▪ Describe the origins of natural law in ancient Greece and Rome and the basic ideas which
inform the natural law tradition.

3
† Cicero: Marcus Tullius Cicero, Roman statesman, orator and philosopher, 106–43 BC.
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2.2 The Natural Law of Aquinas:4 Structure

While the divine was considered by the ancients to be a source of understanding of morality, a brief
review of the rough descriptions of Plato’s, Aristotle’s and the Stoics’ theories of natural law given
above shows that God was not an obvious central figure in the equation. Following the
Christianisation of the Roman Empire, however, a theory of morality could no longer make reference
to God’s word solely as a rhetorical gesture. It took the genius of Thomas Aquinas to reconstruct the
classical natural law tradition of the Greeks and Romans within Christian theology. The central idea
is that the grace of God was held not to conflict with or abolish man’s nature, but to perfect it, and
in this way a Christianised version of natural law could be seen to continue or bring to fruition the
natural law tradition. Aquinas modified Aristotle’s teleological perspective so that man’s end was
not only to live socially and seek knowledge, but to live in a Christian community in which one would
come to know, and presumably adore, God. Most importantly, however, he described orders of law:
eternal, divine, natural and human law, which purported to show the way in which human reason
was able to appreciate what was good and godly – according to Aquinas, man, by his reason, was
able to participate in the moral order of nature designed by God. The orders of law were as follows:

Eternal law: The whole universe is governed by divine providence or divine reason, which is the
ultimate order imposed by the Creator.

Natural law: Humans are special creatures in having a special relationship to divine wisdom or
providence, in that since they possess reason and free will, they have a ‘share’ in this divine wisdom
themselves. This participation of man in the ordering of his affairs by reason is participation in the
rational order ordained by God, and this is natural law.

Human law: Human law consists of those particular rules and regulations that man, using his reason,
deduces from the general precepts of natural law to deal with particular matters. For example, it is
a natural law precept that crimes must be punished with a severity that corresponds with the
seriousness of a crime, but it is necessary to specify the actual punishment that, say, a thief will
receive under a particular legal system, and the use of reason to provide a punishment of, say, two
years is the use of reason called ‘human law’. This might also be called ‘positive’ law, as it is the
actual law posited by legal institutions.

Finally, there is divine law: This is the law that is revealed by God to man, more or less directly,
through the provision of the 10 commandments or through scripture more generally, or via the
divinely inspired pronouncements of prophets or the Church fathers or the pope. Divine law most
directly concerns man in his relation to God and achieving paradise; it lays down how man is to act
in relation to God (in terms of the requirement to take part in rituals such as baptism and Holy
Communion, and in forswearing5 other gods or idols, for example) and furthermore covers those
matters of the soul which human institutions are unfit to regulate, such as evil thoughts, which are
nevertheless of vital importance to a man’s relationship with God. Though much of divine law would
be Church or Canon law, to the extent that religious law was also enforced by secular authorities like
city states or princes (for example laws against usury or blasphemy or witchcraft), divine law could
be instantiated in secular law as well. Furthermore, there is an overlap between this law of revelation
and natural law, in such matters as are covered by, for example, the 10 commandments, where the

4 Aquinas: St Thomas Aquinas (1225–74) Italian-born Christian (Catholic) theologian and philosopher.
5
Forswearing (from verb ‘forswear’) = agreeing to have nothing to do with.
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prohibitions against murder, theft, bearing false witness and so on, are declared by divine law but
can also be appreciated as natural law precepts as well.

Self-Assessment Questions
1. According to Aquinas, what is man’s telos? How does it differ from what Aristotle viewed as
man’s telos?

2. What are the different orders of law in Aquinas’s scheme? In what ways do they interact or
overlap?

Activity 2.2
Consider the criminal law of rape, the law of wills and the law of taxation. What order(s) of law
under the Aquinean scheme do these belong to, and why?

Feedback: see end of guide.

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2.3 The Natural Law of Aquinas: Legal Reason, Human Law and The Obligation to
Obey the Law
We have seen from the preceding that, according to Aquinas, law arises from man’s participation,
via his reason, in the divine wisdom of God. Sometimes human law is simply a deductive conclusion
from the general precepts of natural law. But there is a second way in which human law is created
in accordance with natural law and Aquinas exploits the analogy of the architect to explain this. To
build a house, there has to be a general idea of a house – that it has rooms, doorways, windows and
so on – so that there are, as it were, ‘natural law’ precepts or requirements of house building.
However, the idea of a house does not tell the architect whether the doors must be two metres
high, how many rooms and so on. The natural law precepts of house building will require that the
doorways must be more than 30 cm high, for a doorway this low would not be functional. But no
specific workable height is specified by the mere idea of a house; this specification needs to be done
by the architect and, in the same way, while natural law requires that thieves be punished, the
natural law does not specify what the particular punishment should be, so long as its severity
corresponds in some sense or degree to the seriousness of theft. Aquinas rendered this distinction
in Latin: what the natural law lays down – or can be deduced from it by reason alone – is specificatio,
or specified. What man must practically decide about, compatibly with the natural law but not by
deduction from it, such as the proper punishment for theft, is a matter of determinatio,
determination within the boundaries set by natural law.

Human law also has particular tasks and limits which natural law does not. While some subjects of
the law are naturally inclined to be virtuous, others are more evil or selfish – which we might perhaps
all be in certain moods or times of our life. The law must exert not only a guiding but a disciplinary
force to deal with the latter sort of person. The human law must also be general, applying to all
subjects, though laws applying to children and perhaps others with limited rational capacity may
justifiably differ. The human law cannot be a counsel of perfection; it should attend to the more
serious matters of human conduct, and not try to prohibit every vice or insist on every virtue: its task
is to ensure a framework of rules which provide for a human community that is capable of
flourishing – not to create heaven on earth.

Furthermore, since humans are granted only limited reason and insight, human law cannot be
treated merely as the laying down and enforcement of rules. There will always be exceptional cases
in which a departure from the strict rule will be justified, and human judges must maintain and
nurture this sense of ‘equity’ in the face of the rules.

Because the human law is a particularisation or determination of concrete rules and principles,
which, while they must be in keeping with the natural law, are not fully specified by it, the human
law is mutable, and will be different in different times and places. Despite this mutable character, it
is unwise, according to Aquinas, to change the human laws too often or too radically, even if within
the confines of natural law. Custom is important and, the more laws change, the less legitimacy they
appear to have. Consequently, the proper coercive power of the law is diminished. The law should
only be changed if the benefits clearly outweigh these drawbacks.

According to Aquinas, a law only ‘obliges in conscience’ to the extent that it is in keeping with the
natural law. An unjust law has more the character of violence than of law. Yet Aquinas does not
draw from this the conclusion that an unjust law is not a law – it continues to partake of the character
of law in its form, and in this sense participates in the order of law at least in this minimal way. One
must always remember that the law is, from the moral point of view, a necessary human institution
Jurisprudence and Legal Theory Part II Natural Law Classical and Modern Natural Law Theory Page 9

of communal practical reason. Every person has the duty to support and to act to foster it, which
will condition its success. If a law is unjust, this does not provide an absolute licence to disobey it.
The consequences of obedience have to be taken into account for the general project of law.
Disobedience might, for example, generate a willingness among people to disobey the law for selfish
reasons, or make it more difficult for just laws to be administered, and so on.

Self-Assessment Questions
1. What are the two ways in which the natural law is a source of human law?
2. Explain the difference between specificatio and determinatio.
3. What particular tasks and limitations does human law have?
4. What is Aquinas’s view on the moral obligation to obey the human law?

Activity 2.3
Read Freeman, Chapter 2 ‘Natural law’, extract by Aquinas ‘Summa theologica’, para. 2–020 and
answer the following:

What are the strengths and weaknesses of Aquinas’s theory of the law?

Feedback: see end of guide.

Summary
Aquinas married Aristotle’s natural law theory with the Christian tradition to develop the most
refined theory of natural law before the 20th century, and his work is a fundamental reference point
for all natural law theorists. Aquinas’s natural law theory shows man, because of his reason, to be a
participant in divine wisdom, whose purpose is to live in a flourishing Christian community. Law is a
necessary institution in such a community, and just laws will reflect directly (specificatio) or indirectly
(determinatio) the universal morality of natural law.

Reminder of Learning Outcomes

By this stage you should be able to:

▪ Explain the natural law theory of Aquinas, in particular the relation of natural law to divine law
and human law, and the importance of the distinction between specificatio and determinatio
in the generation of law.
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2.4 Laws that Uplift Human Personality

An example of a 20th century figure demonstrating this type of natural law thinking in action is
Martin Luther King Junior. King was an African-American civil rights leader, activist and Christian
minister. He was murdered in 1968. This quotation is taken from a letter he wrote while in
Birmingham, Alabama Jail in 1963 following his arrest on a civil rights peaceful protest. He writes to
other Christian leaders:

If you add ‘Critically discuss’ you have a sample exam question.

Activity 2.4

▪ What do you think King means by laws that uplift human personality?
▪ Can you think of any examples?
▪ Can you think of any that degrade it?
▪ Can you think of any other words for ‘personality’ in this context?

No feedback provided.

In considering natural law and its relationship to our laws and modern states today, it is important
to think of how this relates to notions of natural law and law’s purpose. Do you think natural law –
at least as you currently understand it – has any relevance to modern states: if so, in what ways?
Has religion got anything to do with this?
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2.5 Social Contract and States of Nature

There are two types of laws: there are just and there are unjust laws. I would agree with Saint
Augustine that ‘an unjust law is no law at all’.

Now what is the difference between the two? ...A just law is a man-made code that squares with
the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law.
To put it in the words of St Thomas Aquinas, an unjust law is a human law that is not rooted in eternal
and natural law. Any law that uplifts human personality is just. Any law that degrades human
personality is unjust.

From the 16th century – the 1500s onwards until about the 1800s – there were various thinkers who
drew on a new way of thinking of the relationship between the human and society or the state. The
individual becomes more central with the enlightenment notion that we are all somehow by nature
free, equal and possessing the powers of reason. In this sense, we are in a state of nature and
voluntarily agree to remove ourselves from that by forming together by way of a contract or social
agreement to create a state. This creates a foundation for political and legal power and legitimacy
over us. This takes a variety of guises from Thomas Hobbes to John Locke to Jean- Jacques Rousseau
and they have different views of what we are like as individuals in the state of nature, which translate
into different types of state. Take a look at Locke and Rousseau’s own writings in Freeman, paras 2-
022 and 2-023.

Think about these methods and theories. You should connect these to Hobbes in Chapter 3 and to
Rawls’s theory of justice discussed in Chapter 10 of the module guide. Hobbes is considered here as
part of the foundation of positivism in law – it is on the creation of the state – Hobbes’s Leviathan –
that we have the creation of ‘just’ and ‘unjust’ laws, and laws that obligate us to each other. For
further details, see Chapter 3 of the module guide. John Locke’s version of the social contract seeks
to ensure the state enshrines already existing natural rights, especially to freedom of the person and
by extension property rights. This connects to Nozick and can also be connected to Marx – see
Chapters 10 and 11 of the module guide.

Social contract and natural rights theories fell out of fashion with the horrors of the French
Revolution, which culminated in dictatorship and mass executions at the end of the 1700s/early
1800s. It is these excesses that Bentham has in mind when he talks about natural rights as ‘nonsense
on stilts’. Connect this to Chapter 3 of the module guide and your work on Bentham and then Austin
in relation to the command theory and classical positivism of the 19th century.
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2.6 Modern Natural Law Theory I: Finnis6

Modern natural law theory is an attempt to sustain the natural law theorist’s project of exposing
and emphasising the importance of the connections between law and morality, but which has had
to face squarely the objections of legal positivists. John Finnis was a student of Hart, and one of the
strengths of his natural law theory is how seriously it takes the insights of positivism. He ultimately
concludes, however, that positivism is at best a partial, and at worst a fundamentally flawed, theory
of law.

2.6.1 Finnis’s Ethical Theory

Two major arguments against natural law theory must be addressed by any modern natural law
theorist. The first is moral scepticism, which doubts universal moral truths. Moral scepticism has
itself been attacked as incoherent or nonsensical, but the debate remains a live one. Clearly, if moral
scepticism is right, then natural law theory is hopeless, for there would be no objective moral
standards for humans to discern through their powers of reason that could connect with the law.
You should remain aware of this issue, in part because it is a necessary backdrop for understanding
Finnis’s moral theory, but more generally to understand the broader kind of philosophical challenge
that a natural law theory might face. It is well beyond the scope of this course to study in detail the
arguments of moral sceptics and their respondents.

The second argument concerns the way in which we might know what morality requires. You may
have heard of the fact/value distinction, which is akin to the distinction between description and
prescription, or the factual and the normative. The fact/value distinction is the distinction between
statements which describe some aspect of reality (e.g. ‘Elizabeth II is Queen of England’), and
statements which evaluate some aspect of reality, or prescribe some behaviour (e.g. ‘Killing the
innocent is wrong’ or ‘Do unto others as you would have them do unto you’). The leading
philosopher of the Scottish Enlightenment, David Hume (1711–76), famously pointed out that one
cannot validly infer or derive evaluative propositions from factual ones; the point is typically put
thus: ‘One cannot derive an “ought” from an “is”.’ G.E. Moore called this fallacy the ‘naturalistic’
fallacy. A common example is: ‘Because of their biology, women can bear children; therefore,
women ought to bear children, and it is morally good that they do so, and immoral for them to avoid
having children.’ It is fallacious to reason from a description of women (that they have the capacity
to bear children) to the moral principle that they ought to bear children. How does this relate to
your natural law theory course? You will have noticed that one of the principal organising ideas of
natural law theory is that it looks to the nature of man/humans, or certain aspects of human nature
– sociability, powers of reason and so forth. These are all descriptions of humans, albeit intended to
be more or less ultimate descriptions of an essential nature. But, from these characterisations, we
are supposed to derive moral principles by which humans should guide their lives. But this reasoning,
as we have just seen, is fallacious.

The argument, then, is that the natural law tradition is founded on the fallacy of deriving ought from
is, and it is not obvious how this argument can be countered.

John Finnis tackles this issue head-on, denying that the natural law tradition (especially as it is
represented by Aquinas) is founded on the derivation of ‘ought’ from ‘is’. Rather, he says, natural
law theory is founded on man’s ability to grasp values directly, not inferring them from the facts of

6You may also find it useful to read Hart’s introduction to the ideas of natural law in Chapter 8 of his The concept

of law.
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the world. According to Finnis, there are basic values that underlie the human appreciation of the
value of any particular thing and all man’s purposive activities. As presented in his first major work
on the topic, Natural law and natural rights, originally published in 1980, these values are life,
knowledge, play, aesthetic experience, friendship, religion (not in the sense of any particular
religion, but in the value of seeking to understand one’s place in the universe) and practical
reasonableness (the value of pursuing the other values in a reasonable fashion). These seven values
are not inferred from facts about the world or man, but are appreciated directly by humans as
valuing beings. While Finnis admits that there can be debates about the list of basic values, he is
insistent that the basic values are irredeemably plural and ‘incommensurable’, that is, the good of
one cannot be directly measured against the good of another on some common scale. Therefore, it
is not the case that if one is presented with an opportunity to play or enhance one’s knowledge, one
could detect that one had an opportunity to get seven units of play but only five units of knowledge,
and so decide to play. Choosing to pursue one value rather than another is not a simple process of
this kind. Furthermore, the seven basic values are not mere manifestations of some more basic or
master value, such as pleasure, or utility.

Self-Assessment Questions
▪ What is the ‘naturalistic’ fallacy? Why does it undermine natural law theory?
▪ What is Finnis’s response to the claim that natural law derives ought from is?
▪ What are the basic values that Finnis describes? Can they be reduced to some more
fundamental value?

2.6.2 Finnis’s Natural Law Theory of Law and the Criticism of Positivism
The essential claim that Finnis makes about the law is that it is a social institution. Its purpose is
crucial, which is to regulate the affairs of people and thus contribute to the creation of a community
in which all people can flourish (i.e. a community in which everyone can realise the seven different
basic values). In this way, the law is a moral project. Therefore, in order to rightly describe the law,
one must take the position of a person who examines the law with this purpose in mind (i.e. the
practically reasonable person who grasps the seven basic values and the law’s purpose in helping
people to realise them). This provides a clear connection between moral philosophy and legal
philosophy. Whether one’s description of law is correct or not will depend upon whether one’s moral
views are correct, for one’s moral views will inform the way in which one conceives of the project of
law. Finnis argues that positivism fails to provide a full or accurate picture of law. While Finnis
welcomes the insights into the nature of law that have originated with positivists, in particular the
positivism of Hart, he denies that these insights provide a sufficient theory of law.

Activity 2.6
Read Freeman, Chapter 2 ’Natural law’, extract by Finnis, J.M. ‘Natural law and natural rights,
para. 2–025 and answer the following question:

▪ What does Finnis mean by the ‘focal’ concept of law, and why does he not intend to explain
our ‘ordinary’ concept of law?

Feedback: see end of guide.

Reminder of Learning Outcomes

By this stage you should be able to:
Jurisprudence and Legal Theory Part II Natural Law Classical and Modern Natural Law Theory Page 14

▪ Explain Finnis’s modern natural law theory, in particular his employment of the ‘focal meaning’
or ‘central case’ to determine the subject matter of legal theory, his reference to self-evident
basic values, and his characterisation of practical reason.
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2.7 Modern Natural Law Theory II: Fuller

Unlike Finnis, Fuller did not aim to produce a morality of law on the basis of a general moral theory
in keeping with the ancient natural law traditions; rather, he sought to explain the moral content in
the idea of ‘the rule of law’ (i.e. governance by rules and judicial institutions as opposed to other
sorts of political decision-making or ordering, such as military command or bureaucratic
administration). The morality he describes is morality as ‘legality’, meaning morally sound aspects of
governing by rules. For this reason, Fuller is often credited with devising a ‘procedural’ natural law
theory, in that he does not focus on the substantive content of legal rules and assess them as to
whether they are moral or not, but rather concerns himself with the requirements of just law-making
and administration.

Activity 2.7
Read Freeman, Chapter 2 ‘Natural law’, extract by Fuller, L.L ‘The morality of law’, para. 2–024 and
answer the following questions:

a. What are the problems with Rex’s behaviour? What are the eight principles of the morality of
law, according to Fuller?
b. Do they, in your opinion, capture the morality of the law?
c. What do you make of Hart’s criticism (Essays in jurisprudence and philosophy, p.350) that
Fuller’s ‘principles of legality’ ‘perpetrate a confusion between two notions it is vital to hold
apart: the notions of purposive activity and morality. Poisoning is no doubt a purposive activity,
and reflections on its purpose may show that it has its internal principles. (“Avoid poisons
however lethal if they cause the victim to vomit”, or “Avoid poisons however lethal if their
shape, color, or size, is likely to attract notice.”) But to call these principles of the poisoner’s
art “the morality of poisoning” would simply blur the distinction between the notion of
efficiency for a purpose and those final judgments about activities and purposes with which
morality in its various forms is concerned.’

Feedback: see end of guide.

Summary
Finnis’s natural law theory is based on the direct appreciation of self-evidently valuable basic goods
– the purpose of law is to provide conditions in which these goods can be realised. His theory is
Aquinean in the sense that he follows Aquinas’s general theory as regards the
specificatio/determinatio distinction and its general outlook on the attitude subjects must take to
unjust laws. Fuller’s natural law theory is concerned to vindicate the notion of ‘legality’ or the rule
of law, to provide a sense in which rule by law, as opposed to executive fiat or administration, is
distinctive in a morally significant way.
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2.8 The Continuing Debate Over the Connection Between Law and Morality
Although working through this chapter will provide you with the basic ideas which underlie natural
law thought, the question of the connection between law and morality is a vast one, and perhaps in
the Western philosophical tradition, the most important and deeply contested question there is.
You should bear this question in mind as you work through the succeeding chapters. Next you will
begin to study the legal philosophy of Hart, who, though a positivist, was always sensitive to the
natural lawyer’s claims, and repeatedly addressed the different connections he saw between
morality and law. Similarly, when you study Dworkin, you will examine the work of a theorist, who,
like natural lawyers, saw an intimate connection between morality and law, although from a quite
different perspective. Dworkin argued that his theory refutes positivism, in part for its failure to
account for the role moral theory plays when judges decide cases. There is a mass of literature on
this subject, and while we have looked at Finnis’s work in detail, there are also modern natural
lawyers of different kinds. For further readings, consider the extracts by Mead and Greenawalt in
Chapter 2 of Freeman. If you would like to delve further, see the following:

Murphy, M. Natural law in jurisprudence and politics. (Cambridge: Cambridge University Press,
2006) [ISBN 9780521108089].

This takes an original approach to the central issues of modern natural law theory, offering an
interesting alternative to the work of Finnis. Those interested in pursuing a deeper understanding
of Finnis’s natural law theory should consult the combined Issues 3 and 4 of Volume 13 (2007) of
Legal Theory, a special issue devoted to papers on Finnis’s work and concluding with a reply by
Finnis.

Gardner, J. ‘Nearly natural law’ (2007) 52 American Journal of Jurisprudence 1 (available in

HeinOnline via the Online Library).

Gardner provides an exclusive positivist’s perspective on the questions natural law theory raises. As
preliminary reading one should look at the now classic:

Gardner, J. ‘Legal positivism: 5½ myths’ (2001) 46 American Journal of Jurisprudence 199 (available
in HeinOnline via the Online Library).

Not explicitly placed in the natural law tradition, though it relies extensively on Aquinas’s thought,
is the rather more demanding:

Rodriguez-Blanco, V. Law and authority under the guise of the good. (Oxford: Hart Publishing,
2014) [ISBN 9781849464499].

This book argues that we can understand the nature of legal authority and normativity if we
understand both how agents exercise their practical reason under legal directives and commands,
and how the agent engages their practical reason by following legal rules grounded on reasons for
actions as good-making characteristics. This will also allow us to draw distinctions between truly
normative legal systems and only seeming, non-genuine ones.

Reminder of Learning Outcomes

By this stage you should be able to:

▪ Explain in detail Fuller’s ‘inner morality of law’

Jurisprudence and Legal Theory Part II Natural Law Classical and Modern Natural Law Theory Page 17

▪ Critically assess these various versions of natural law theory in light of the attack on natural
law by legal positivists.

Further Reading
Coleman, J. and S. Shapiro (eds) Oxford handbook of jurisprudence and the philosophy of law.
(Oxford: Oxford University Press, 2002) Chapter 1 (John Finnis) ‘Natural law: the classical
tradition’, and Chapter 2 (Brian Bix) ‘Natural law: the modern tradition’.

Morrison, W. Jurisprudence from the Greeks to post-modernism. Chapter 2 ‘Origins: Classical

Greece and the idea of natural law’ and Chapter 3 ‘The laws of nature, man’s power, and God: the
synthesis of mediaeval Christendom’.
Jurisprudence and Legal Theory Part II Natural Law Classical and Modern Natural Law Theory Page 18

Sample Examination Questions

Question 1. Why is natural law sometimes historically associated with revolutionary movements,
and sometimes with social conservatism? Does this varying association detract from
its plausibility as a theory of law?

Question 2. Besides its undoubted relevance to the history of legal thought, does natural law
theory matter any more?

Advice on Answering the Questions

Question 1. This question concerns the way in which, under traditional natural law theory,
natural law is regarded as a ‘higher’ law by which positive law is to be judged. Since
the natural law is the true dictate of morality, what any person regards as ultimately
morally right will provide the content of the natural law, and this vantage point of
criticism is available equally to the revolutionary and the conservative. Because of
this, the content of natural law will be as controversial as morality is. In one respect,
this is just as it should be, for if on the one hand morality is controversial, so should
the content of natural law be; but on the other hand, it does seem to detract from
the plausibility of natural law’s claim that law is intimately connected to morality.
For the law seems to be settled at any one time in a way that morality is not, and
this would suggest that the connection, if any, is a weak one, and a positivist might
claim, as Hart did, that any legal system need only give effect to a minimum content
of natural law. In other words, the law must respect basic human nature in so far
as it fosters human survival with laws against murder, theft and so on; but beyond
that, it is not determined by morality at all. Much can also be said here about
Finnis’s and Fuller’s natural law positions. Finnis tries to render the connection
between morality and law in a much more nuanced fashion, which aims to preserve
natural law’s critical perspective, while giving little comfort to the revolutionary
who fails to see the inherent moral project of the law and would seek to overthrow
legal structures per se. Similarly, the appeal of Fuller’s natural law theory, focusing
as it does on process rather than content, would not oscillate so dramatically
between reform and conservatism over time.

Question 2. This question requires an exploration of the contemporary relevance of natural law
theory, in particular the natural law theories of Finnis and Fuller, and of people like
Moore and George, if you have read more widely. It demands an examination of
whether natural law can withstand the central claim of positivism, that it
illegitimately glorifies a social institution as necessarily moral, whereas it should be
regarded as a human practice, a social technique, which can be put to good or bad
ends. You might also consider whether the prevalent moral relativism of a secular
age, or philosophical scepticism, has undermined natural law thinking. Finally, does
natural law theorising avoid committing, in one way or another, the ‘naturalistic
fallacy’? Notice how easily this fallacy can be committed – Fuller’s description of the
principles which make up the ‘inner morality of law’ commits just this fallacy if Hart
is correct in judging him to have mistakenly treated principles of effectiveness as
principles of morality. page 24 University of London
Jurisprudence and Legal Theory Part II Natural Law Classical and Modern Natural Law Theory Page 19

Reflect and Review

Look through the points listed below. Are you ready to move on to the next chapter?

Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in
this chapter to enable me to go on to the next chapter.

Need to revise first = There are one or two areas I am unsure about and need to revise before I go
on to the next chapter.

Need to study again = I found many or all of the principles outlined in this chapter very difficult and
need to go over them again before I move on.

Tick a box for each topic.

Ready To Move On Need To Revise Need To Study

First Again
I can describe the origins of natural
law in ancient Greece and Rome
and the basic ideas which inform
the natural law tradition.
I can explain the natural law theory
of Aquinas, in particular the
relation of natural law to divine law
and human law, and the
importance of the distinction
between specificatio and
determinatio in the generation of
law.
I can explain Finnis’s modern
natural law theory, in particular his
employment of the ‘focal meaning’
or ‘central case’ to determine the
subject matter of legal theory, his
reference to self-evident basic
values, and his characterisation of
practical reason.
I can explain in detail Fuller’s ‘inner
morality of law’.
I can critically assess these various
versions of natural law theory in
light of the attack on natural law by
legal positivists.