Chapter 4 Classical and modern natural law

theory

Contents
Introduction 61

4.1 The rise of natural law in ancient Greece and Rome 62

4.2 The natural law of Aquinas: structure 65

4.3 The natural law of Aquinas: legal reason, human law, and
the obligation to obey the law 67

4.4 Modern natural law theory I: Finnis 69

4.5 Modern natural law theory II: Fuller 71

4.6 The continuing debate over the connection between law

and morality 72

Introduction
From the time of the ancient Greeks up until the sixteenth or
seventeenth 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.
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

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positivism whilst keeping its character as a plausible moral

philosophy.

Learning outcomes
By the end of this chapter and the relevant readings 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
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.

Essential reading
Either of the following:
Penner et al., Chapter 2: ‘The evolution of natural law’, pp. 35–90.
Freeman, Chapter 3: ‘Natural law’, pp. 89–198.

4.1 The rise of natural law in ancient Greece and

1
Rome 1
This passage uses ‘man’, ‘his’ and ‘he’ as
The term ‘natural law’ is misleading, for it sounds as if it denotes they would have been used by earlier
some kind of theory of the law, a ‘natural’ one, whatever that is. It writers on natural law. Today we would

does not. Originally, ‘natural law’ was a general moral theory which want to emphasise that the human race is
not exclusively male, and would probably
explained the nature of morality, not the nature of law per se.
say: ‘The basic idea was that human
The basic idea was that man, using his reason, and possibly with
beings, using their reason, and possibly
the help of the revelation of the gods or God, could come to
with the help of the revelation of the gods
understand how he should act rightly in respect of his fellow man.
or God, could come to understand how
This morality of reason and revelation was a morality which
they should act rightly in respect of their
purported to take account of man’s nature, hence the title
fellow humans.’
‘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, of course, 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. So 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

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of the broader moral life of human beings. (As we shall see,

however, the most important living natural lawyer, 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. In short, they lack a critical
perspective on the standards of behaviour they uphold. 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 which 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 men flourish and achieve the
‘good life’. The Stoics2 accorded primacy to man’s reason – by 2
Stoics: an ancient Greek school of
reason man could determine those precepts of right conduct which philosophers who believed, among other
transcended particular cultures, and therefore were universally things, that the mind is a ‘blank slate’,
applicable. The ‘law on the books’ that most directly resulted from upon which sense-impressions are
this intellectual activity was the jus gentium, which started life as a inscribed. It may have a certain activity of
second class legal order, a stripped-down Roman civil law which its own, but this activity is confined
applied to foreigners, but which came to be regarded as a higher or exclusively to materials supplied by the
superior legal order, in some sense akin to international law, a kind physical organs of sense.
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

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non est lex, i.e. an unjust law (unjust, that is, according to the
principles of morality, i.e. 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 morality, i.e. 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 straight away
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 exam mistake to state something
silly along the lines that ‘only natural lawyers judge the law by
moral standards’. This is nonsense. Legal positivists, in particular,
are happy to 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?

Activity 4.1
3
Read either the excerpt from Cicero in Penner et al., pp. 46–50, or the excerpt 3
Cicero: Marcus Tullius Cicero, Roman
from Cicero in Freeman, pp. 140–141, and answer the following: statesman, orator and philosopher, 106–43
BC.
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

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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 page 75.

Summary
The natural law tradition arose as the application of a theory of
morality which emphasised man’s common moral nature to 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.

4 4
4.2 The natural law of Aquinas: structure Aquinas: St Thomas Aquinas (1225–
1274) Italian-born Christian (Catholic)
While the divine was considered by the ancients to be a source of
theologian and philosopher.
understanding of morality, a brief review of the rough descriptions
of Plato’s, Aristotle’s and the Stoic’s 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 presumable 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 –
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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 ten
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 5
Forswearing (from verb ‘forswear’) =
gods or idols, for example) and furthermore covers those matters of agreeing to have nothing to do with.
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 Ten Commandments,
where the 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?

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Activity 4.2
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 page 75.

4.3 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. In order to build a house, one starts with the 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 –
the general precepts of morality – does not. While some subjects of
the law are naturally inclined to be virtuous, others are of more evil
or selfish disposition – which we might perhaps all be in certain
moods or times of our life. Thus 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.

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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, for custom is important, and the more laws
change, the less legitimacy they appear to have; and 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 of communal practical reason.
Every person has the duty to support, and to act so as to foster,
conditions for its success. Thus the fact that a law is unjust does not
provide one with an absolute licence to disobey it; one must take
into account the consequences of one’s obedience for the general
project of law – disobedience might, for example, generate a
willingness amongst 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 4.3
Read either the excerpt from Aquinas in Penner et al., pp. 50–65, or the excerpt
from Aquinas in Freeman, p.142–146, and answer the following:
What are the strengths and weaknesses of Aquinas’s theory of the law?
Feedback: see page 76.

Summary
Aquinas married Aristotle’s natural law theory with the Christian
tradition to develop the most refined theory of natural law before
the twentieth century, and his work is a fundamental reference
point for all natural law theorists. Acquinas’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.

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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.

6
6 You may also find it useful to read Hart’s
4.4 Modern natural law theory I: Finnis introduction to the ideas of natural law in
Modern natural law theory is an attempt to sustain the natural law Chapter 8 of his Concept of 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, the
most important contemporary natural law theorist, was a student of
H.L.A. Hart’s, and one of the strengths of his natural law theory is
its respect for the insights of positivism. He ultimately concludes,
however, that positivism is at best a partial, and at worst, a
fundamentally flawed, theory of law.

4.4.1 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. ‘Realists’ about morality believe that moral values and
principles exist, and ‘cognitivists’ about morality believe that
humans can come to know what these moral values and principles
are, so that statements about what is morally right can be judged to
be true or false. Moral sceptics of various kinds deny either or both
of these views. Emotivists of various kinds, for example, believe
that what we call our moral beliefs are ultimately just expressions
of our emotional attitudes. As an example of a modern positivist
who clearly doubted that there were universally valid, objective
moral norms that humans could know the truth of, one can cite
Kelsen (see Chapter 10). 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 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–
1776), 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”.’
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Thus it is fallacious (though unfortunately not uncommon) for

people to reason like this: ‘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. (G. E. Moore called this
fallacy the ‘naturalistic fallacy’.) How does this bear on natural law
theory? You will have noticed that one of the principal organising
ideas of natural law theory is that it looks to the nature of man, or
certain aspects of his nature, e.g. that he is social, or that he has
reason, or that he can know God. These are all descriptions of man,
albeit intended to be more or less ultimate descriptions of his
essential nature. But from these characterisations of man, we are
supposed to derive moral principles by which man should guide his
life. But this reasoning, as we have just seen, is fallacious. To say
that man is rational is one thing; it is an entirely different matter to
decide whether acting morally amounts to acting rationally. That
God says to do so and so is one thing; it is another to decide
whether one ought to obey God.
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 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, 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
man’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. Thus
it is not the case that if one is presented 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
1 What is moral scepticism? Why does it undermine natural law theory?
2 What is the ‘naturalistic’ fallacy? Why does it undermine natural law theory?
3 What is Finnis’s response to the claim that natural law derives ought from is?
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4 What are the basic values that Finnis describes? Can they be reduced to some
more fundamental value?

4.4.2 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 whose purpose 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
person 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 (in part, but very significantly) 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. In this
way, Finnis denies that positivism provides 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 H.L.A. Hart, he denies that these insights provide a
sufficient theory of law.

Activity 4.4
Read either the excerpts from Finnis in Penner et al., pp. 68–71, or in Freeman,
pp. 178–80, 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 page 76.

Reminder of learning outcomes

By this stage you should be able to:
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.

4.5 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

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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 4.5
Read the excerpt from Fuller either in Penner et al., pp. 74–83, or in Freeman, pp.
157–171, and answer the following questions:
(a) 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 (Hart, H.L.A. Essays in Jurisprudence and
Philosophy. (Oxford: Clarendon Press, 1983), 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 page 77.

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 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.

4.6 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. Thus you should bear in mind this
question as you work through the succeeding chapters. Next you
will study the legal philosophy of H.L.A. Hart, who, though a
positivist, was always sensitive to the natural lawyer’s claims, and
again and again addressed the different connections he saw
between morality and law. Similarly, when you pass to the work of
Ronald Dworkin, you will examine the work of a theorist, who, like
natural lawyers, sees an intimate connection between morality and
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law, although from a quite different perspective. Dworkin believes

that his theory refutes positivism, in part for its failure to account
for the role moral theory plays when judges decide cases. There is,
finally, a massive literature on this subject, and while we have
looked at Finnis’s work in detail, there are also modern natural
lawyers of different kinds, such as Michael Moore, who deserve
attention if you want to read more widely.

Reminder of learning outcomes

By this stage you should be able to:
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.

Useful further reading

Coleman, J. and Shapiro, S. (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’.
George, R. (ed.) Natural Law Theory: Contemporary essays. (Oxford:
Clarendon Press, 1992) (which includes M. Moore’s, ‘Law as a functional
kind’, at pp. 188–242).
Hart, H.L.A. The Concept of Law. (Oxford: Clarendon Press, 1994) (second
edition) Chapter VIII, ‘Justice and morality’, and Chapter IX, ‘Laws and
morals’.
Hart, H.L.A. Essays in Jurisprudence and Philosophy. (Oxford, Clarendon
Press, 1983) Chapter 2: ‘Positivism and the separation of law and morals’,
and Chapter 16: ‘Lon L. Fuller: The morality of law’.
Finnis, J. Natural Law and Natural Rights. (Oxford: Clarendon Press, 1980).
Fuller, L. L. The Morality of Law. (revised edition) (New Haven: Yale
University Press, 1969).
Morrison, W. Jurisprudence from the Greeks to Post-modernism. (London:
Cavendish, 1997) 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’.
Shiner, R. Norm and Nature: Movements of legal thought. (Oxford:
Clarendon Press, 1992).

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?

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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 morality is controversial, so should the content of
natural law be; but on the other hand, it does seem to detract from
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.

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Feedback to activities: Chapter 4

Activity 4.1 Notice the two very different sources of natural law
(i.e. our understanding of morality in these passages): first, our
shared reason – our ‘shared conceptions’ given us by nature by
which we all classify things in the same way, evil with evil, good
with good, and so on; but secondly, God, the ‘author’ of the natural
law. Is it not possible for our reason to conflict with what we learn
from the revelation of God’s will? This tension between reason and
revelation was a source of doubt throughout the Renaissance:7 was
7
Renaissance: (French for ‘rebirth) the
the moral law as revealed by God good just because God willed it, upsurge of cultural, philosophical and
or was it willed by God because it was good? Grotius8 famously cultural life that spread from Italy to the
denied that right conduct was good just because God willed it, rest of Europe beginning in the fourteenth
holding that natural law would be valid even if God didn’t exist. century. It was triggered by the rediscovery
One of the questions these passages raise is this: does the natural of classical Greek, Islamic and Roman texts.

law tradition provide a plausible theory of morality in the first 8

Grotius: Hugo Grotius, Dutch legal
place? After all, for a natural law theory to move on fruitfully to
scholar, 1583–1645.
consider the moral character of the law, it must be sound in its
fundamentals. But have you any faith that morality can be
successfully derived from man’s reason alone, or from revelation, or
from some combination of the two? A utilitarian would adamantly
oppose this sort of characterisation of morality. So does natural law
theory’s claim that law and morality are at some level connected
depend upon the sort of theory of morality you espouse?
Activity 4.2 Assuming that forcible assault and sexual intercourse
among citizens is universally regarded as wrong (which, on the
anthropological evidence, is a fair assumption), laws prohibiting
rape can be seen to reflect the basic precepts of natural law, a
prohibition which is universally understood by all with reason.
However, various passages in the Bible also testify to the wrongness
of rape, and so one can also conclude that the evil of rape is
revealed to us by God, and thus forms part of the divine law as
well. Note however that the particular legal requirements for
criminal conviction, such as the rules regarding mens rea and
consent, the rules on evidence, and the punishments imposed, are
matters of human law. These specific rules are not spelled out by
the divine law or natural law. The law of wills is an interesting
case, for if the law of wills is the law which concerns looking after
one’s dependents on one’s death, then this might be seen to draw
upon both scripture and natural law. It is interesting to note that
the law of wills was, in England and elsewhere, originally part of
the canon law jurisdiction. Of course, the particular formalities,
requirements, and much else in the law of wills, are clearly
determined by human beings and form part of the human law.
Almost all of the law of taxation, although it might in very abstract
terms, draws upon the divine law and natural law – as the law
which concerns and specifies our obligations to support our fellow
man and provide resources for public goods which underpin a
flourishing community – seems clearly to fall within the province of
human law.

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Activity 4.3 This is very similar to a general examination question

focusing on Aquinas. Aquinas is justly famous for taking the ancient
natural law tradition and ‘Christianising’ it in a way that provides
genuine insights into the nature of the relations between law and
morality that many people find compelling. In the first place, notice
how his theory of the connection between law and morality is often
portrayed as indirect, but in such a way that this indirect connection
is nonetheless quite robust. For example, his characterisation of the
orders of eternal, natural and human law emphasises the rational
and guiding functions of order and law, so that human law seems
naturally to fit within a larger structure. His distinction between
specificatio and determinatio, and his emphasis on the latter as the
way in which much human law is created, makes the supreme
morality of natural law a constraint upon human law. This seems
much more plausible than treating human law as somehow directly
ordained by morality.
You should also note the various tasks which must be accomplished
by the human law, and the limitations on what it can do, that
Aquinas points out, once again explicating the indirect relation of
human law to natural law. On the other hand, the theory is
unavoidably complicated by Aquinas’s religious purposes, his
sourcing of law in divine wisdom, and his characterisation of the
eternal law. These cannot be regarded as credible features of a
theory of law in a secular age. Furthermore, it is arguable that
Aquinas talks around, rather than giving a straight answer to, the
central question of our moral obligation to follow the law whether
the particular rule in question is just or not. Look at the
formulations he gives of the way that human law partakes of the
order of eternal law, and of the way law obliges in conscience.
Could not the guidance he provides about disobeying the law not
equally be provided by a positivist: do what is morally right when
the law says so, just because it is morally right; conversely, you
have no obligation to obey the law if it is morally wrong, but
obviously you should take into account the consequences of
disobeying the law if that will cause more harm, morally speaking,
than obeying, as when it might lead to civil unrest and violence, for
example?
Activity 4.4 The ‘focal’ concept of law that Finnis describes is a
theoretically narrowed, multifaceted conception of law as the rules
and institutions which flow from working out of the requirements
of practical reasonableness in its quest to provide a community in
which the basic values can be realised. It is not the ordinary
concept of law, which is much more diffuse, and which allows ‘law’
to be used of the anthropologist’s primitive ‘legal’ culture, or to be
used of the rules of a tyrant’s coercive regime or the rules of the
Mafia. Finnis is claiming to provide the best concept of law for the
theoretical purposes of understanding law. The difficulty with this
view is that it looks too ‘stipulative’, that is, Finnis decides upon his
theoretical approach to law, one in the natural law mould, and then
argues that the concept of law which differs from the ordinary
concept of law is most suited to explaining law; but the sceptic
might claim that having at the outset found value in the natural law
tradition, Finnis just matches his concept of law to it. The point
here is that we are not generally free to choose how we will define
our concepts, whatever our theories of the things the concept
represents. Our ‘ordinary’ concept of law is what it is because it

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reflects what we all share in terms of what counts as law and what
doesn’t; and no one is entitled simply to say that our ordinary
concept of law is too diffuse or mistaken. The positivist would
respond that our ordinary concept of law, which treats wicked legal
systems of law as legal systems nevertheless, and wicked laws as
laws despite their wickedness, is the concept of law we must
explain. It does no good to tailor a concept to match our moral
interests, as Finnis arguably does here, for that is simply to change
the subject of the inquiry; by doing so, the positivist will respond,
Finnis fails to address the phenomenon of law as it is understood by
people generally. This sort of criticism cannot be blunted by
appealing to the norms of reason of natural science, for example by
saying that for the purposes of physics, it doesn’t matter what our
ordinary concept of, say, mass, is, for physics is sound when it gets
the nature of mass right, not because there is some kind of social
acceptance of the physicist’s theory of mass. The positivist would
respond by saying that in the case of social institutions like the law,
part of what makes them what they are is what people understand
them to be, for institutions like law are made up of intentional
human practices, ways of behaving, and so one cannot ignore the
concept of the participants themselves in the practice when
examining what the practice actually is. Bear these points in mind
when you look at H.L.A. Hart’s theory of law.
Activity 4.5 According to Fuller, in order for the law to acquire
the value of ‘legality’, the law must (1) operate by general rules,
which (2) must be published to the subjects of the law, and (3)
must operate prospectively rather than retrospectively, and (4)
which are reasonably clear and intelligible, and (5) which are not
contradictory, and (6) which do not change so often and radically
so as to make it impossible for a subject of the law to follow the
law, and (7) do not require the impossible of the subjects of the
law, and finally (8) must be administered in accordance with their
meaning and purpose.
Notice that these requirements of ‘legal morality’, which Fuller
sometimes refers to as the ‘inner morality of the law’, are explained
in terms of eight ways in which the law can fail to be made or
administered in a just way. This might lead one to question
whether these eight principles fully capture the morality of law, for
they are all about avoiding doing wrong rather than achieving any
valuable purposes. Even in procedural terms, it might be argued
that Fuller does not capture obvious moral principles. Consider the
two principles of ‘natural justice’ which deeply inform
administrative law; audi alteram partem (‘hear the other party’ –
the principle that a decision is not fair if both parties to a dispute
are not given fair opportunity to present facts and make
representations as to the law), and the principle that a tribunal
must not be biased, i.e. that the decision-maker cannot have any
interest in the proceedings or be related to either party so as to
bring him or her into a conflict of interest. Are these not obvious
principles of ‘legality’? Can they easily be fitted into Fuller’s eight
principles? Hart’s criticism is famous, and at first glance seems
decisive, for it does indeed look as if Fuller’s principles of legality
are principles of effective law-making, not morality, which
could be turned either to wicked or good purposes. The Nazis
would have needed to follow Fuller’s principles if they wanted to
succeed in using the law to get their subjects to do what they

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wanted. There is, however, a possible response to this, though it is

questionable whether it vindicates Fuller’s view as a ‘natural law’
view. It might be said that retrospective legislation, legislation
setting impossible tasks, or a failure to observe the audi alteram
partem rule, are not just matters of ineffectiveness, but are obvious
instance of unfairness, and thus immoral. While this seems right, it
does not seem to establish a necessary connection between law and
morality. All it seems to establish is that if you have a legal system
in operation, then there are new and different ways of acting
immorally than there would be if there was no legal system in
place. So the existence of different social institutions, like law, the
family, marriage or schools, give rise to new and different occasions
of wrong-doing. If there were no examinations there could be no
cheating in exams; if there were no authors or books there could be
no cases of plagiarism. But this doesn’t establish that taking
examinations is a moral enterprise, or that writing books is.
Similarly, the fact that the law provides new and different
occasions for acting wrongfully does not seem to establish any
necessary connection between law and morality.

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