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THE DEFENCE OF NATURAL LAW

Also by Charles Covell

THE REDEFINIDON OF CONSERVATISM:


Politics and Doctrine
The Defence of
Natural La~
A Study of the Ideas of Law and Justice in the
Writings of Lon L. Fuller, Michael Oakeshot,
F. A. Hayek, Ronald Dworkin and John
Finnis

Charles Covell

M
St. Martin's Press
©Charles Covell1992
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First published in Great Britain 1992 by
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ISBN 978-1-349-22361-9 ISBN 978-1-349-22359-6 (eBook)
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Reprinted 1994

First published in the United States of America 1992 by


Scholarly and Reference Division,
ST. MARTIN'S PRESS, INC.,
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New York, N.Y. 10010
ISBN 978-0-312-08394-6
Library of Congress Cataloging-in-Publication Data
Covell, Charles, 1955-
The defence of natural law : a study of the ideas of law and justice
in the writings of Lon L. Fuller, Michael Oakeshot, F. A. Hayek,
Ronald Dworkin, and John Finnis I Charles Covell.
p. em.
"First published in Great Britain, 1992, by The Macmillan Press
Ltd., Houndmills, Basingstoke, Hampshire ... and London"-T.p.
verso
Includes bibliographical references and index.
ISBN 978-0-312-08394-6
1. Natural law. 2. Law-Philosophy. 3. Justice. 4. Political
science-Philosophy. I. Title: Defense of natural law.
K415.C66 1992
340'.112-dc20 92-8325
CIP
For my students
Contents

Acknawledgements ix

Preface x

1 Introduction: Modem Legal Philosophy 1

2 Lon L Fuller and the Defence of Natural Law 30


i. The Law in Quest of Itself 31
ii. Eunomics and the Morality of Law 43
iii. The Common Law Tradition and the Political
Morality of Liberalism 57

3 Michael Oakeshott and F. A. Hayek: Natural Law and


the Philosophy of Liberal Conservatism 71
i. Oakeshott, Hobbes and Civil Association 72
ii. The Liberal Theory of Justice: Oakeshott and Rawls 91
iii. The Liberal Theory of Justice: Oakeshott and Nozick 114
iv. Oakeshott, Hart and Legal Positivism 121
v. Hayek, Oakeshott and Liberalism 126

4 Ronald Dworkin: Legal Philosophy and the Liberal


Theory of Justice 145
i. The Critique of Legal Positivism: Hard Cases,
Principles and Adjudication 146
ii. The Liberal Theory of Justice: Individual Rights and
the Idea of Law as a Community of Principle 163
iii. Dworkin and Hayek 171
iv. Dworkin and Oakeshott 175
v. Integrity: Liberalism, Legitimacy and Natural Law 180

vii
viii Contents

5 John Finnis: Thomism and the Philosophy of Natural


Law 196
i. Natural Law and Natural Rights 198
ii. Nuclear Deterrence and the Legitimacy of the
Modem Political Order 215

6 Conclusion 226

Notes and References 242


Bibliography 255
Index 261
Acknowledgements
I wrote the early drafts of this book in England during the second
half of the 1980s. For most of this period I lived in Cambridge,
where I derived great benefit from the advice and intellectual
stimulus provided by Dr Paul Binski, Mr Maurice Cowling, Dr
Ian Harris, Dr Alexander Lindsay, Mr Alexander Perkins and Mr
J. H. Prynne. I completed the final version of the book during the
early months of my tenure of a Foreign Professorship at the College
of International Relations of the University of Tsukuba in Japan.
I am pleased to have here the opportunity to record my formal
thanks to Professor Akio Hosono, the present Dean of the College,
and to his predecessor Professor Hideo Sato for the many privileges
and courtesies extended to me as a member of the College.

Tsukuba, Japan CHARLFS COVELL


July 1991

ix
Preface

In his classic monograph Natural Law (1951),1 A. P. d'Entreves


traced the emergence of the great natural law tradition in legal
and political philosophy from its origins in the thought of Plato,
Aristotle and the stoic philosophers, through the period of its
adaptation by Roman jurists as a philosophical foundation for
Roman law, up to its culmination in the philosophical system of
St Thomas Aquinas. According to d'Entreves, the governing idea of
the natural law tradition consisted in the view that the study of law
was to be understood as forming a branch of ethics - with the
consequence that he took the essential function of natural law
philosophy to be that of mediating between 'the moral sphere
and the sphere of law proper'.2 For d'Entreves, then, it was a
distinguishing characteristic of the work of philosophers belonging
to the natural law tradition that they sought to emphasize both the
moral foundations of law and the formative role played by the law
in the organization of the moral experience of the individual in
society.
Lon L. Fuller (1902-78), Michael Oakeshott (1901-90), F. A. Hayek
(1899-1992), Ronald Dworkin (b. 1931) and John Finnis (b. 1940)
were all committed to the view that the rule of law in modem
society was to be understood in accordance with the critical
standpoint provided by moral philosophy. However, with the
exception of Finnis, none of the theorists looked back to the great
Aristotelian-Thomist tradition in natural law philosophy. Indeed,
Fuller, Oakeshott, Hayek and Dworkin adhered closely to the
intellectual viewpoints that distinguished the modem tradition in
moral, legal and political philosophy which d'Entreves considered
to have marked a fundamental break with the classical and
medieval philosophy of natural law. For d'Entreves, the modem
tradition in moral, legal and political philosophy began during the
sixteenth and seventeenth centuries, and was reflected in, and
carried forward by, the theological ideas that emerged during the

X
Preface xi

Reformation in Europe; the growing secularization of the concepts


constitutive of natural law philosophy; the advent of the ideology
of political absolutism, as manifested in the tendency of theorists
like Bodin and Hobbes to regard the sovereign power of the state as
the essential precondition of legal experience, and to regard the
ideas of command and obedience as defining the essential nature of
law; the emergence in the seventeenth century, and the develop-
ment in the centuries following, of a political philosophy based in
the idea of the natural rights of the individual; and the formulation
by Hegel in the early nineteenth century of the doctrine of the
ethical state, according to which the legitimacy of the modem state
was understood to be grounded in the historical experience of
human society, rather than in its conformity to universal principles
of natural law.
In the first chapter of this volume, I describe the outlines of the
modem tradition in legal philosophy. In doing so, I concentrate on
the nineteenth- and twentieth-century schools of legal positivism,
historical jurisprudence, American legal realism and sociological
jurisprudence. At the same time, I attempt to describe the outlines
of the modem tradition in political philosophy which began with
Hobbes, while looking back to the pre-modem tradition in political
philosophy of Plato, Aristotle and Aquinas. My main aims in the
first chapter are to locate Fuller, Oakeshott, Hayek, Dworkin and
Finnis in the context of the history of legal and political philosophy,
and to explain the philosophical ideas which influenced the
development of their arguments about the nature of law and civil
government. A related aim is to make clear that, with the exception
of Finnis, these theorists are to be counted as defenders of natural
law more by virtue of their opposition to the prevailing positivism
of modem legal philosophy than because of any alignment on their
part with the tradition of Plato, Aristotle and Aquinas.
In Chapter 2, I examine the work of Fuller, a jurist generally
acknowledged to be one of the leading twentieth-century defenders
of the modem secular natural law tradition in legal philosophy.
Although drawing on a wide range of Fuller's published writings, I
structure the chapter around detailed critical analyses of his three
most important works: The Law in Quest of Itself(1940); The Morality
of Law (1964) and Anatomy of the Law (1968). My objectives in so
organizing the chapter are three in number. First, I attempt to use
Fuller's arguments for the purposive quality of law, as set out in
The Law in Quest of Itself, in order to identify the principal grounds
xii Preface

of conflict between the metaphysical assumptions governing the


view of law adopted by jurists standing in the mainstream tradition
of legal positivism and those governing the view of law taken up
by theorists like Fuller, Oakeshott, Hayek, Dworkin and Finnis.
Second, I try to show how Fuller's arguments for an essentially
procedural theory of natural law in The Morality of lAw make clear
the underlying adherence of modem legal philosophers in the
natural law tradition to the moral and political values central to
the philosophy of modem liberalism. Third, I try to show how
Fuller's arguments for the purposive quality of law, and his
arguments for the procedural morality which he took to secure
the justice of law, led him in Anatomy of the Law to focus on the
logic governing the methods of adjudication followed by the courts
in the common law tradition. In this connection, I argue that
Fuller's analysis of the logic of judicial reasoning confirmed the
substance of the account of the practice of the courts developed by
Hayek, while also prefiguring the model of law and adjudication
constructed by Dworkin. I conclude Chapter 2 by addressing the
question of Fuller's allegiance to the philosophy of modem liberal-
ism. In doing so, I suggest that Fuller was unequivocal in his
defence of the moral and political values of liberalism, and that he
explicitly resisted any attempt to explain the relationship between
state and society, or the relationship between law and morality, in
terms of the ideas constitutive of the viewpoint in legal philosophy
that distinguished the Aristotelian-Thomist tradition in natural
law.
The first part of Chapter 3 provides a critical examination of
Oakeshott's writings on Hobbes, as collected in the volume Hobbes
on Civil Association (1975), together with a critical exposition of the
highly original philosophy of politics, law and the state which
Oakeshott set out in the volumes Rationalism in Politics (1962), On
Human Conduct (1975) and On History (1983). I suggest that
Oakeshott followed Fuller in taking the formal principles of the
procedural morality of law to ground the legitimacy of the modem
political order. At the same time, however, I stress that Oakeshott
diverged from Fuller - as he did also from Hayek and Dworkin - in
maintaining that the integrity of the modem rule of law was
guaranteed by the sovereign powers inherent in the office of
government of the modem European states which emerged and
established their authority during the sixteenth and seventeenth
centuries.
Preface xiii

In the second and third parts of Chapter 3, I rank Oakeshott's On


Human Conduct with John Rawls's A Theory of Justice (1971) and
Robert Nozick's Anarchy, State, and Utopia (1974) as one of the most
substantial contributions of recent decades to the evolution of the
philosophy of modern liberalism. Specifically, I suggest that,
despite their disagreements about the essential nature of justice,
Oakeshott, Rawls and Nozick were united in defending a rights-
based interpretation of liberalism as a philosophy of political
morality, and that, in consequence of this fact, all three theorists
stood equally opposed to the classical Aristotelian-Thomist tradi-
tion in political philosophy. In claiming Oakeshott for liberalism, I
wholeheartedly endorse the general drift of the argument of Paul
Franco in his admirable The PolitiCJll Philosophy of Michael Oakeshott
(1990). 3 In contrast to Franco, though, I discern an underlying
tension in Oakeshott's thought between the theory of civil govern-
ment which he inherited from Hobbes - the crux of his contribution
to the philosophy of liberalism - and the Hegelian defence of
traditionalism in political activity which he mounted in Rationalism
in Politics. I differ from Franco in the further respect that I try to
assess Oakeshott's relation to the tradition of modern liberalism
through a detailed consideration of his philosophy of law. In doing
so, I emphasize that Oakeshott took over from Hobbes precisely the
sort of voluntarist theory of law and legal obligation which Fuller,
Hayek and Dworkin regarded as being steeped in the metaphysical
illusions that they associated with the mainstream tradition of
modern legal positivism initiated by Bentham and Austin. This is
why, in the fourth part of the chapter, I attempt to bring out certain
points of comparison between the view of law adopted by Oake-
shott and the view of law to be found in the legal philosophy of
H. L.A. Hart, one of the greatest twentieth-century representatives
of the positivist tradition in modern jurisprudence.
In Chapter 3, I consider the respects in which Oakeshott should,
and should not, be placed with Hayek as a member of the postwar
movement of libertarian anti-totalitarianism. I recognize that Oake-
shott and Hayek were united in their opposition to modern
European socialism. However, I question whether the defence of
the morality of the free market economy held the same central
importance among Oakeshott's intellectual concerns as it held
among the concerns of Hayek. Above all, I contend that Oakeshott
and Hayek constructed radically divergent interpretations of the
fundamental reality of law and legal order. Whereas Oakeshott
xiv Preface

constructed a voluntarist model of law which looked back to the


civil philosophy of Hobbes, Hayek constructed an essentially
naturalistic model of law which looked back to the tradition in
legal philosophy of Coke and Blackstone.4
The fifth part of Chapter 3 comprises an appraisal of the theory of
law, civil government and political economy which Hayek set out in
three of his most important works: The Road to Serfdom (1944), The
Constitution of Liberty (1960) and Law, Legislation and Liberty (1973-9).
I pay special attention to the internally guaranteed connections
which Hayek sought to establish between the structural principles
governing the organization of the modem market economy as it
emerged in eighteenth-century England and the particular proced-
ures of adjudication developed in England by the common law
courts. In doing this, I suggest that Hayek's analysis of the practice
of the English courts involved the exposition of a theory of
adjudication which deserves to be ranked with the much more
widely known theory of judicial reasoning expounded by Dworkin.
In Chapter 4 I seek to reconstruct the legal philosophy of Ronald
Dworkin. To this end, I focus on the thirty-odd articles collected
together in the volumes Taking Rights Seriously (19m and A Matter
of Principle (1985), the important two-part article on equality
published in Philosophy and Public Affairs in 1981, and the system-
atic restatement of his legal philosophy which Dworkin provided in
Law's Empire (1986). I begin the chapter by exploring the main
themes of Dworkin's descriptive analysis of law and adjudication.
These include the role ascribed by Dworkin to legal principles in
civil adjudication; the distinctions drawn in Law's Empire between
conventionalism, pragmatism and law as integrity as theoretical inter-
pretations of the nature of law; and the idea of law as a community of
principle defended in Law's Empire. I go on to develop the argument
of Chapters 2 and 3 by comparing Dworkin's legal philosophy with
the legal philosophies of Hayek, Oakeshott and Fuller. In doing so, I
try to bring out: the striking parallels between the models of law
and adjudication constructed by Dworkin and Hayek; the contrast
between Dworkin as exponent of a naturalistic view of law and
Oakeshott as exponent of a voluntaristic view of law; and the
relationship between Dworkin's model of law and adjudication
and the purposive theory of law formulated by Fuller in The Law
in Quest of Itself. I also assess Dworkin's status as a defender of the
political morality of liberalism, emphasizing particularly his at-
tempt to restate the core principles of Rawls's doctrine of justice
Preface XV

as fairness from the theoretical standpoint of legal philosophy. I


conclude that Dworkin ultimately failed to establish an internally
guaranteed connection between his descriptive analysis of law and
adjudication and the normative principles of political morality
constitutive of Rawlsian liberalism.
In Chapter 5, I examine the moral and legal philosophy expoun-
ded by Finnis in his Natural Law and Natural Rights (1980). Finnis is
included in the present book because, in contrast to Fuller,
Oakeshott, Hayek and Dworkin, he sought to defend the classic
natural law viewpoint in legal philosophy to be found in the pre-
modem tradition of Aristotle and Aquinas. His inclusion thus
serves to underline the starkness of the contrast emphasized in
earlier chapters between the Aristotelian-Thomist tradition of
natural law and the tradition of modem liberalism that originated
with Hobbes. Finnis is also included in this book because of the
vehemence with which he repudiated liberalism as a philosophy of
political morality.
In the Conclusion, I submit that the work of Fuller, Oakeshott,
Hayek, Dworkin and Finnis was characterized by considerable
ambivalence towards liberalism as a philosophy of law and
government - or, to be more exact, by a marked ambivalence
towards many of the moral and political doctrines central to the
mainstream tradition of liberalism in the West. For instance, Fuller
and Dworkin were opposed to the philosophical idea of the social
contract as a foundation for the moral authority of the state,
Oakeshott and Hayek to the whole rationalist spirit of modem
liberalism, Finnis to the ethics of I<antian liberalism, with all five
being implacably opposed to the utilitarianism of Bentham and
Mill. Nevertheless, I argue that, despite these ambivalences, all the
theorists (including Finnis) were uniformly committed to the ruling
ethos of liberalism, and that their work is best understood as an
attempt to use the procedures associated with the natural law
viewpoint in legal philosophy as a basis for constructing a morally
and intellectually compelling defence of the legitimacy claimed on
behalf of the political order of modem liberal society.
My principal aim in writing The Defence of Natural Law has been to
expound the legal philosophies of Fuller, Oakeshott, Hayek,
Dworkin and Finnis. Despite its mainly expository character, the
book does make two original contributions to the understanding of
its subject-matter, one concerning Fuller and Dworkin and one
concerning Oakeshott and Hayek. It is widely recognized - as it
xvi Preface

was by RobertS. Summers5 for instance- that Fuller's work exerted


a powerful influence over the evolution of the legal philosophy of
Ronald Dworkin. However, little has yet been done to explain in
detail the relationship between the two theorists. In the present
volume, I show how the analysis of the formal structure of judicial
reasoning that Fuller provided in Anatomy of the Lllw looked
forward to the general theory of law and adjudication on which
Dworkin based his normative philosophy of individual rights.
Dworkin's theory of adjudication was grounded in a complex
philosophical analysis of the intellectual processes at work in the
interpretation of law. This analysis of interpretation in the law was
central to the argument of Lllw's Empire. It is my suggestion that the
argument of Law's Empire rested on a metaphysical conception of
the nature of law which looked back to the theory of law as a
purposive form of social order that Fuller first outlined in The Law
in Quest of Itself.
Oakeshott and Hayek rank among the great twentieth-century
defenders of the philosophy of liberal constitutionalism. However, I
emphasize that the two theorists were sharply divided in their
views as to the essential nature of law in modern society. Oakeshott
adhered closely to the voluntaristic conception of law that he found
in the civil philosophy of Hobbes. This was why he came to insist
that the integrity of the modem rule of law rested upon the
structure of rights and powers vested in the office of government
of the modem sovereign state. For his part, Hayek adhered to the
sort of naturalistic view of law characteristic of the pre-Benthamite
tradition in legal philosophy of Coke and Blackstone. This was why
he came to assign primacy among the various forms of legal order
to the tradition of judge-made law, a tradition which he emphasized
had developed in societies like England independently of the
sovereign rights and powers exercised through the governmental
institutions of the state. The fundamental contrast between the
different views as to the metaphysical nature of law that disting-
uished the work of Oakeshott and Hayek did not hinge merely on
technical questions internal to legal philosophy. On the contrary, I
take it to be a truth of great significance for the understanding of
practical deliberation about public policy in modem society that the
view of law running through the work of Oakeshott, and the
particular view of sovereignty which it presupposed, were such
as to provide little conceptually guaranteed support for the kind of
case against socialism that Oakeshott and Hayek sought to
Preface xvii

construct as part of their defence of the morality of liberal


constitutionalism.
The five theorists examined in this book addressed the subject of
law in modem society as members of the English-speaking aca-
demic community. As Americans, Fuller and Dworkin are repre-
sentative of the legal culture of the United States. Although from
different national backgrounds, Oakeshott, Hayek and Fmnis are
representative of the legal culture of England. After teaching law at
various American universities, Fuller became a permanent member
of the faculty of the Harvard Law School during the academic year
1939-40, and remained at Harvard as a law professor until his
retirement in 1972. Oakeshott was elected a fellow of Gonville and
Caius College, Cambridge in 1925, served in the British Army
between 1940 and 1945, and held the Chair of Political Science at
the London School of Economics from 1951 to 1969. Born in Vienna,
Hayek acquired British nationality in 1938, and held prestigious
chairs in economics at the University of London between 1931 and
1950 and in the moral and social sciences at the University of
Chicago from 1950 to 1962. Dworkin was a member of the faculty
of the Yale Law School from 1962 to 1969. In 1969, he succeeded
Hart as Professor of Jurisprudence in the University of Oxford.
Finnis was educated in Australia before going to Oxford, where he
taught as a member of the law faculty, becoming in 1989 Professor
of Law and Legal Philosophy.
The mentalities of Fuller, Oakeshott, Hayek, Dworkin and Finnis
were shaped by the great intellectual conflict between the philoso-
phy of liberal constitutionalism of the West and the various
ideologies of totalitarianism which cast their shadow over the
political culture of the modem world throughout most of the
twentieth century. Hayek was born in 1899, Oakeshott in 1901.
Both theorists rank with Sir Karl Popper (b. 1902), Hannah Arendt
(190(r75), H. L.A. Hart (b. 1907), Isaiah Berlin (b. 1909) and J. L.
Talmon (1916-80) as intellectual personalities who were deeply
implicated in the political-cultural process by which the ethos of
anti-totalitarianism of the 1930s and 1940s became transformed into
the distinctively libertarian ideology of anti-totalitarianism that
characterized most of the philosophical defences of the morality
of liberal constitutionalism during the period of the Cold War
running from the era of Truman to the era of Reagan. Although
explicitly critical of the teachings of Berlin (and critical by implica-
tion of the teachings of Popper and Talmon), Fuller was born in
xviii Preface

1902 and must therefore be considered as part of the generation of


Oakeshott and Hayek.
Dworkin wrote from a temporal vantage-point quite distinct from
that of Fuller, Oakeshott and Hayek. Dworkin was born in 1931, ten
years after Rawls (b. 1921) and seven years before Nozick (b. 1938).
Rawls's philosophical writings provided an underlying moral
justification for the policy aims of Lyndon Johnson's Great Socie-
ty. Nozick constructed a moral-political doctrine which provided
justification for the economic programmes, if not the foreign policy
positions, which were to prevail in the United States during the
Reagan Revolution. As a Rawlsian liberal, Dworkin regarded the
pursuit of social and economic equality as a legitimate concern of
government in respects that told against the absolutism of the moral
distinctions drawn by political theorists and policy-makers during
the Cold War between the political order of the liberal capitalist
West and the political order of the communist East. Furthermore, as
an implacable opponent of American involvement in Vietnam,
Dworkin implicitly rejected the orthodox Cold War assumptions
of United States foreign policy in the form these took in the 1960s
and early 1970s. Nonetheless, Dworkin so took for granted the
validity of liberalism as a philosophy of law and government that
none of the practical alternatives to the constitutionalist tradition of
the West was even entertained by him as a possible basis for the just
ordering of modem society. For Finnis, Western liberalism involved
substantial moral error, and his analysis of the strategy of nuclear
deterrence left it unclear how the conduct of foreign policy by the
Western democracies during the Cold War could actually be
reconciled with the convictions of the ordinary moral conscience.
However, Finnis followed the classic postwar anti-totalitarian
theorists in asserting a fundamental moral contrast between the
liberal democratic regimes of the West and the Marxist-Leninist
regimes of the old communist bloc. Moreover, if Finnis challenged
the claims of the Western democracies to possess moral authority
(as he did in relation to nuclear deterrence), then this does not alter
the fact that, for him, the former communist regimes of Eastern
Europe had systematically transgressed the universal principles of
political morality which he considered to comprise the natural law.
The collapse of Soviet power in Eastern Europe that began in the
late 1980s has sometimes been taken to imply the possibility of a
final settlement of the long standing philosophical conflicts regard-
ing the future of modem society which reached their climax during
Preface xix

the period of the Cold War. To this extent, the concerns of the
theorists examined in the present volume may seem to belong to a
stage in philosophical controversy about the nature of law, govern-
ment, justice and political legitimacy which has passed over into
history. Against this, however, it needs to be said that it now
appears increasingly doubtful whether the collapse of Soviet
power, and the repudiation of the doctrines of Marxism-Lenin-
ism, will result in a decisive victory for liberal constitutionalism as a
philosophy of political morality. Indeed, it is more than possible
that the success of this philosophy in the years ahead will depend
upon an acceptance by its defenders that the question of the
essential nature of liberalism is a question that still awaits a final
and conclusive answer. Thus it is with a sense both of the
contemporary triumph of liberalism, and of the openness of the
tradition of liberalism to rival interpretations of its meaning and
promise, that the philosophies of law and government of Fuller,
Oakeshott, Hayek, Dworkin and Finnis are commended to the
reader in the circumstances of the early 1990s.

Tsukuba, Japan CHARLES CoVELL


July 1991

The months since July 1991 have witnessed many momentous


events in world politics, including the dissolution of the Soviet
Union. Despite its profound historical importance, the end of the
Soviet Union does not affect the argument of the present volume.
The reader is advised therefore that he or she will find the name
'Soviet Union' standing unaltered in the text.

Tsukuba, Japan CHARLES COVELL


February 1992
1
Introduction: Modern Legal
Philosophy

The origins of the modem tradition in legal philosophy are general-


ly associated with the emergence of the particular view of law and
legal institutions adopted by jurists belonging to the school of legal
positivism. The foundations of the positivist school of jurisprudence
in the English-speaking legal world were laid by the great political
scientist Jeremy Bentham (1748-1832). Bentham constructed a
model of law usually referred to as the command or imperative
theory of law. Bentham expounded this theory in great detail in
writings which were not in fact published during his lifetime.
However, many of the basic ideas of the imperative theory of law
were present in perhaps his most famous work in political philo-
sophy: An Introduction to the Prindples of Morals and Legislation,1 a
work first printed in 1780, although withheld from publication by
Bentham until 1789.
Bentham constructed the imperative theory of law in accordance
with a particular method for the analysis of legal phenomena which
he called the logic of the will. The application of this analytical
method led Bentham to conclude that the nature of law could be
explained in terms of the simple idea that a law always specified a
duty created through an express command or prohibition willed by its
author. From this basic idea he proceeded to define the law of a
political community as comprising a set of commands and prohibi-
tions, issued by the recognized sovereign law-making body or
institution of that community, and supported by sanctions to be
imposed by the sovereign power in the event of any failure by its
subjects to comply with the requirements laid down in these
commands and prohibitions.
The imperative theory was intended by Bentham to provide the
basis for a fully scientific exposition of the various concepts - like
those of duty, rights and powers - which he considered to be
fundamental to the structure of law. The exposition of these

1
2 The Defence of Natural Law

fundamental legal concepts Bentham took to be the business of


what he called expository jurisprudence. It was essential to the idea of
expository jurisprudence, as Bentham characterized it, that its
concern lay with the description and analysis of law and legal
institutions, rather than with their evaluation from the standpoint
of some normative principle of justice or political morality. For
Bentham, the evaluation of law was the function of a branch of
jurisprudence which he called censorial jurisprudence. This censorial
branch of jurisprudence complemented, yet remained distinct from,
expository jurisprudence in the respect that it was concerned not
with the description and analysis of law and legal concepts, but
with the criticism of existing systems of law and existing legal
institutions by reference to normative principles of political moral-
ity, and with the formulation of public policies that best met the
terms of these principles. Thus it was to censorial jurisprudence that
Bentham assigned the role of expounding the practical principles of
morals and legislation.
The distinction which Bentham drew between the concerns of
expository jurisprudence and the concerns of censorial jurispru-
dence signalled a crucial turning-point in the history of legal
philosophy. Bentham's insistence upon the need to draw such a
distinction marked the point at which the study of law came to be
regarded as an autonomous discipline of intellectual enquiry, and
one to be clearly differentiated from those disciplines, like ethics
and political philosophy, which traditionally had involved critical
reflection on normative concepts of justice and political morality.
The distinction between expository and censorial jurisprudence
thus represented a direct challenge on Bentham's part to the
philosophical tradition of natural law, in which the analytical study
of law had been inseparable from consideration of the normative
concerns of moral and political philosophy. At the same time, the
imperative theory of law - which served as the methodological
basis of expository jurisprudence - enabled Bentham to demon-
strate that there existed no necessary or conceptually guaranteed
connection between law and morality. In arguing for a purely
contingent connection between law and morality, Bentham repu-
diated a claim central to the whole natural law tradition in legal
philosophy: namely, that law and morality were connected in the
respect that the validity of the legal system of any given political
community was underwritten by moral principles enshrined in an
independently existing body of natural law.
Introduction 3

One of Bentham's purposes in formulating the imperative theory


was to call into question the particular use made of the concept of
natural law by the great English jurist Sir William Blackstone (1723-
80) in his Commentllries on the lAws of England (1765-9). 2 Blackstone
wrote the Commentaries in part to demonstrate the moral basis of the
authority of the English legal system. To this end, he held that
English law was founded in certain immutable principles of natural
law, which, although willed by God, were also capable of being
grasped by human reason. Hence, he argued that the common law
had been developed - or rather discovered - by the English courts in
accordance with procedures of adjudication in which legal rules
and precedents were established through an application to indivi-
dual cases of the principles of morality and reasonableness that ran
through the whole structure of English law.
Bentham responded to Blackstone by writing a critique of the
Commentaries which led to the comJX!Sition of his celebrated work A
Fragment on Government (1776). Against Blackstone, Bentham
explicitly rejected any assumption that legal norms could be
discovered through an exercise of reason, or that they owed their
validity to their connection with morally binding principles of
natural law. Under the terms of his imperative theory, Bentham
insisted that all authentic law was positive law, in the sense that law
could come into being - that is, be 'posited' - only as the result of
some creative act of will on the part of a sovereign or subordinate
law-making institution. Moreover, he held that the validity of
positive law, as positive law, derived precisely from the fact that
it originated in the act of will of a sovereign law-maker. Accord-
ingly, he denied that it was essential either to the existence or to the
validity of positive law that it should incorporate or conform to any
non-legal standards of justice or morality. To suppose otherwise, as
Blackstone had done, was to blur the distinction between the
description and evaluation of law, and so prevent the exposition
of the fundamental principles of legal order which, for Bentham,
was the precondition of any progressive reform of existing law.
Bentham's opposition to Blackstone reflects an important truth
about the imperative theory of law. Blackstone came at the end
of a long line of English jurists who had sought to examine the
internal structure and principles of the common law. As with his
predecessors in this tradition, like the great jurist Sir Edward Coke
(1552-1634), Blackstone was concerned with English law in its
character as a system of predominantly judge-made law. Bentham's
4 The Defence of Natural Law

imperative theory, however, was a theory of law in which the law of


legislation was assumed to represent the essential basis for the legal
regulation of society. In this way, the imperative theory anticipated
the enormous growth in the importance of statutory legislation as
an instrument of social and economic organization which took place
in England, and in the West generally, during the nineteenth and
twentieth centuries. At the same time, the imperative theory looked
back to the political thought of the early modern period in
European history, when the power of legislation first came to be
clearly recognized as a defining attribute - perhaps the defining
attribute- of the sovereign state.
The imperative view of law as the commands of a sovereign was
by no means original to Bentham. The elements of a command
theory of law had already been set out by the French political
philosopher Jean Bodin (15~96) and, in England, by Thomas
Hobbes (1588-1679) in his Leviathan (1651). 4 In Leviathan, Hobbes
explicitly defined civil law as the commands of a sovereign. For
Hobbes, however, the definition of law as the commands of a
sovereign followed as a consequence of his attempt to explain the
character of political society - that is, a commonwealth - in terms of
the idea of the social contract or covenant. According to Hobbes,
organized political society was to be understood as the outcome of
some voluntary contractual agreement or covenant among its
members. This covenant Hobbes took to create the rights and
powers of the sovereign authority within a commonwealth, and
to describe the rights and obligations of the civil subject. The idea of
an original covenant was essentially a philosophical construct,
which served to identify certain abstract conditions of human
association necessary for the generation of a commonwealth.
Central to the idea, as Hobbes formulated it, was the contrast
between the state of nature, which he characterized as a state of
universal war, and the condition of political society, which he
characterized as a state of peace secured and maintained by the
power of an acknowledged civil sovereign. The idea of the covenant
generating a commonwealth thus carried with it the implication
that law-governed society was an artificial form of human associa-
tion, which, although brought into being through the voluntary
agreement of its members, nonetheless remained in permanent
conflict with many of their natural wants and inclinations.
The contractualist model of political society set out in Leviathan
underlined the crucial respects in which Hobbes broke with the
Introduction 5

great natural law tradition in Western philosophy. The origins of


this tradition lay in the classical world, and many of the ideas
central to the tradition were present in the thought of the two
greatest classical philosophers: Plato (c. 428-348/7 BC) and Aristotle
(384-322 BC). Unlike Hobbes and his successors, Plato and Aristotle
recognized no fundamental conflict between the condition of
political society and the condition of human nature. On the contra-
ry, they conceived the state- or, rather, the Greek city-state or polis-
as an ethical form of human association, which made possible the
full realization of the ends essential to the rational nature of the
human agent. Central to the specification of these human ends, for
Plato and Aristotle, was the idea of justice, or, more particularly, the
idea of justice considered as a distinct moral virtue of the human
person. Thus, it was through an analysis of the virtue of justice as a
principle internal to the human soul that Plato froceeded to describe
the character of the ideal state in the Republic.
Aristotle followed Plato in taking the idea of justice to be the
primary concern of political philosophy, and in attempting to
explain the meaning of the idea as part of a theory of ethics based
in a conception of human virtue. Aristotle explored the nature of
the human virtues in the Nicomachean Ethics,6 and his treatment of
this subject led directly to the discussion of the nature of the state in
the Politics? In the Politics, Aristotle tried to identify the organizing
principles of the Greek polis. In doing so, he concluded that the
moral obligation imposed by the state was based in a principle of
distributive justice. The essential idea of distributive justice Aris-
totle defined as that of treating equals equally. In this sense, the
principle of distributive justice served to constitute the state as a
form of human association whose members were bound together as
equals under a system of publicly defined rules and laws. From this
principle of distributive justice Aristotle derived, albeit provision-
ally, many of the principles that were taken by later theorists to be
implicit in the very concept of the rule of law - including the
principle providing that the powers exercised by the state should be
subject to the terms of its laws and constitution.
The profound historical importance of the argument of the
Nicomachean Ethics and the Politics consists in the fact that Aristotle
derived the first principles of morality and political association in
accordance with the metaphysical viewpoint known as the teleo-
logical conception of nature. Under this teleological conception, the
constituent parts of the natural universe were interpreted as
6 The Defence of Natural Law

tending towards the actualization of the ends which defined their


essential reality. Aristotle regarded the human agent as an integral
part of the order of the natural universe, which was why he
considered his strategy in the Ethics to be one of describing those
virtues whose possession and exercise made possible the realization
of the final end, or good, that defined the essential nature of the
human agent. Aristotle's metaphysical teleology also led him in the
Politics to regard the state as a self-complete, or self-sufficient,
community, which embodied the moral ends that were inherent
in its own legal and constitutional structure. This teleological view
of the state and its authority was implicit in Aristotle's conviction
that the human agent could be complete, and so fulfil the ends
essential to his rational nature, only through an active participation
in the political realm of laws and institutions. Hence, for Aristotle,
the state remained metaphysically prior to the individuals who
comprised it, with the consequence that he assumed that the state
exercised a moral authority over the citizen which was based
directly in the objectively given condition of human nature.
Running through the thought of Plato and Aristotle was the
assumption of a fundamental metaphysical distinction between
the order of nature and the sphere of social convention. Plato and
Aristotle drew this distinction because their procedures in political
philosophy committed them to constructing an ideal ethical con-
ception of human nature which would serve as a universal criterion
for the critical evaluation of the conventional arrangements of
particular societies. The contrast between nature and convention
was subsequently developed by philosophers who belonged to the
school of stoicism, which, beginning about 300 BC, was to flourish
in the classical world for over five hundred years. The stoics sought
to derive certain normative laws of nature from a principle of
universal, or cosmic, reason. In doing so, they were led to conceive
the laws of nature as a universally valid system of law, which was
binding on human beings merely in virtue of their common rational
nature.
Many of the teachings of the stoics were taken up by Roman
jurists and philosophers as a basis for the exposition of the
principles of Roman law. In this connection, the stoic concept of
law as a rule of universal reason greatly influenced Roman jurists in
their attempt to establish certain principles of natural law - the so-
called jus naturale - as a theoretical rationalization for the jus
gentium: that is, the body of rules and principles which were held
Introduction 7

to apply to all the peoples subject to the jurisdiction of Roman law,


and hence to be independent of the conventional rights and duties
laid down in the different systems of customary law that existed
throughout the Roman Empire. The most important Roman philo-
sopher to be influenced by the stoics was Cicero (106-43 BC). In his
political works, Cicero did much to present Roman law as an
embodiment of the basic principles of constitutional government.
At the same time, in his restatement of the tenets of stoic philoso-
phy, he offered an account of natural law which was to exert a
decisive influence upon the development of the idea of natural law
in the Christian tradition.
The greatest contribution to the philosophy of natural law within
the Christian tradition was that of the thirteenth-century Dominican
theologian StThomas Aquinas (1224/~74). It was Aquinas's lasting
achievement to reconcile the metaphysical viewpoint of classical
Aristotelianism with the fundamental articles of the Christian faith.
Aquinas took seriously Aristotle's teleological view of the state as a
complete community, which exercised a direct moral authority over
its subjects. In contrast to Aristotle, however, he tried to give
meaning to the concept of the state as an essentially law-governed
form of human association. In doing this, he held that the moral
validity of the positive law established within any state was
underwritten by certain universal principles of natural law. These
principles of natural law were regarded by Aquinas as being a
particular manifestation of the eternal law which expressed God's
conception of the ultimate purpose of the created universe. More
specifically, he took the principles of natural law to represent that
part of the eternal law which was discoverable by human reason. In
this sense, the natural law worked to ground such basic moral
norms as the prohibitions on murder and theft in the ordinary
condition of rational human nature.
The pervasive influence of Aquinas's philosophy of natural law
was evident in much of the political thought of the early modem
period in European history. In England, for instance, the Anglican
divine Richard Hooker (1553/4-1600) set out to adapt the rational-
istic view of law essential to the Thomist philosophy of natural law
to the particular political and constitutional structure of Elizabethan
society. Again, Thomism underwent an important revival in Italy,
France and Spain during the era of the Counter-Reformation, a
revival exemplified by the work of the great Spanish Jesuit
theologian Francisco Suarez (1548-1617). Nevertheless, Aquinas's
8 The Defence of Natural Law

attempt to ground the concept of law in the ideas of reason and


nature had already been challenged during the fourteenth century
by theologians belonging to the nominalist school of late medieval
scholasticism. Chief among these was the English Franciscan
William of Ockham (c. 1285-1349). Ockham rejected Aquinas's
claim that the moral law could be established as a conclusion of
natural reason. Instead, he argued that the moral law was to be
understood as a system of divine commands whose authority
derived from their having been willed by God.
The voluntaristic interpretation of law developed by Ockham
anticipated the decisive break with the rationalist tradition of Plato,
Aristotle and Aquinas effected by Hobbes. Hobbes broke with this
tradition because he took the foundational concept in political
philosophy to be the idea of the natural right of the individual
human agent, rather than the idea of a law based in the conclusions
of natural reason. For Hobbes, the right of nature was an absolute
right which, by definition, excluded the possibility of the human
agent being legitimately subject to any principles of law and
obligation save those created through his own voluntary act.
Hobbes did allow that there existed certain laws of nature, to be
discovered by human reason, which described the abstract theore-
tical conditions of peaceful political association. Nonetheless, he
insisted that an actual political society could be generated only
through some voluntary contractual agreement on the part of its
members: that is, an agreement in which the parties to it were
understood to covenant with one another to recognize the authority
of a sovereign, and hence to obligate themselves to obey the rules of
conduct expressly commanded by this sovereign. It was this act of
authorization, rather than any normative principles of natural law,
which Hobbes believed to underwrite the validity of civil law -
with the consequence that he denied that a law commanded by an
authorized sovereign could properly be considered unjust.
Hobbes was a pivotal figure in the history of political philosophy.
Hobbes constructed his philosophy of law and government in the
context of the secularization of the European intellectual conscious-
ness brought about by the scientific revolution of the sixteenth and
seventeenth centuries. In this respect, his work was central to the
process, already set in train by the Dutch jurist Hugo Grotius (1583-
1645), in which the ideas and concepts integral to the medieval
tradition of natural law came to be restated in purely rationalistic
terms that remained free of all theistic presupposition.
Introduction 9

Again, Hobbes is widely regarded as one of the first great


theorists of modem absolutism. Nevertheless, in the primacy
which he assigned to the natural rights of the individual in his
political philosophy, Hobbes laid the foundations for what was to
become the modem tradition of liberal constitutionalism. Essential
to the tradition of liberal constitutionalism was the idea that civil
government should be limited by certain fundamental principles of
political morality - and limited above all by those principles of
political morality which described the rights that individual citizens
were assumed to hold against the state and its representative
institutions of government. Although a proponent of absolute
government, Hobbes anticipated this basic idea of modem consti-
tutionalism in his recognition that there were certain natural rights,
like the right of seH-defence, which the civil subject retained, and
indeed could not surrender, under the very terms of the covenant
creating political society. The tradition of modem liberal constitu-
tionalism was developed by many political theorists who stood in
the line of descent from Hobbes. For example, the Dutch Jewish
philosopher Benedict de Spinoza (1632-77) adhered closely to
Hobbes's account of the absolute nature of the sovereign powers
attaching to the office of government of a modem state - although
he diverged from Hobbes in seeking to reconcile an absolutist view
of civil government with such classic principles of modem liberal-
ism as freedom of speech and religious toleration. Subsequently, the
German philosopher Immanuel Kant (1724-1804) was to postulate
the existence of a so-called innate or natural right of the individual
to freedom, and to derive from this right the objective necessity of
the juridical principles essential to the concept of the modem
Rechtsstaat: that is, the concept of a state in which the exercise of
all official powers was limited by the conditions inherent in its own
law and constitution.
In the English tradition, John Loclce (1632-1704) followed Hobbes
in turning to the idea of a social contract, or compact, to demonstrate
that the authority of civil government derived from the consent of
its subjects. However, Locke differed from Hobbes in the matter of
the natural rights which he took to be at stake in the contract
underlying political society. In particular, he claimed that the terms
of this contract were such that a legitimate government was bound
to respect the alleged natural right of the individual citizen to the
use and enjoyment of his private property. Locke also gave
preliminary expression to the doctrine that the rights of the
10 The Defence of Natural lAw

individual could be guaranteed only under a form of constitutional


government in which there existed an effective separation of powers.
The doctrine of the constitutional separation of powers received
its first systematic exposition in the work of the French political
philosopher Charles-Louis de Secondat, baron de Montesquieu
(1689-1755). Montesquieu set out his theory of limited government
in The Spirit of the lAws (1748),8 a treatise which exercised a
profound influence on the development of the philosophy of liberal
constitutionalism during the eighteenth century. It was in this work
that Montesquieu advanced his celebrated thesis that the laws and
the constitution of a society embodied the spirit of its people, and
that the spirit of a people was always determined by the geogra-
phical, climatic and other conditions that defined its particular
historical experience. In relating the constitutional form of a state
to the historical circumstances of its presupposed social structure,
Montesquieu's work provided an important corrective to the
tendency of philosophers in the liberal tradition to seek to derive
universally valid principles of political association from some
abstract conception of human nature. Indeed, Montesquieu's deter-
mination to understand the state both historically and as inter-
related with society anticipated many of the arguments of the Irish-
born political philosopher Edmund Burke (1729-97), who laid the
foundations of the tradition of modem intellectual conservatism.
Of course, the status of liberalism as a universalist philosophy of
political morality was underwritten by the sort of contractualist
procedures adhered to by Hobbes and his successors. After
Montesquieu, however, the contractualist interpretation of political
society was either explicitly rejected or significantly modified by
political theorists - particularly so by those political theorists often
thought of as standing apart from the mainstream tradition of
liberal constitutionalism, and held by some to have foreshadowed
the advent of modem totalitarianism. Prominent among these were
the Swiss-born philosopher Jean-Jacques Rousseau (1712-78) and
the German idealist metaphysician G. W. F. Hegel (177Q-1831).
Rousseau retained the basic form of the idea of a social contract.
However, he repudiated the concept of natural rights and, indeed,
any theory of rights which implied an opposition between the rights
and liberties of the citizen and the sovereign powers exercised by
the state. For Rousseau, the state was a distinct legal entity em-
bodying the general will of the society which it constituted. This
general will Rousseau took to embody the collectively defined
Introduction 11

interests and values of a political society, and was thus to be


distinguished from the will of all, which he considered to embody
merely the aggregate sum of the conflicting aims of the various
individual members of that society. In drawing his conceptual
distinction between the general will and the will of all, Rousseau
was able to bring out the crucial respects in which the sovereign
rights essential to the character of the modern state both fulfilled
and transcended the rights of the individual citizen.
In contrast to Rousseau, Hegel abandoned the idea of the social
contract altogether. The constitutional order of the state, he argued,
was brought into being not by the voluntary consent or agreement
of its subjects, but, rather, through the spontaneous processes of
social ordering that shaped the customary and tradition-based
forms of human association which made up a so-called sphere of
civil society. Hegel's attempt to explain the authority of the state in
terms of its origins in non-contractual forms of human association
represented a powerful philosophical challenge to the radically
individualist view of political society promoted by Hobbes, Locke,
Kant and the other theorists standing in the tradition of liberal
constitutionalism. Indeed, Hegel looked back to Aristotle in the
respect that he conceived the state as a morally self-complete form
of human association, which existed to serve no end external to
itself. Nonetheless, Hegel's specification of the character of the
modem state involved a fundamental departure both from the
classical and medieval philosophy of natural law that originated
with Plato and Aristotle, and from the modem philosophy of
natural right that began with Hobbes. This was so because he
insisted that moral and political rights were to be identified and
justified, not by appeal to an abstract concept of human nature, but
by reference to the historically grounded circumstances of the
concrete human societies in which these rights received determi-
nate institutional expression in norms and rules of civil law, and in
which they were effectively enforced by an authorized office of
government.
In some of its implications, Hegel's analysis of rights paralleled
the analysis of rights developed by Bentham. However, Bentham
took up an instrumentalist view of the state and the office of its
government that remained entirely alien to the spirit of Hegel's
philosophy. Moreover, Bentham came to align himself with pre-
cisely those doctrines of liberal individualism that Hegel believed
had misrepresented the moral basis of political society.
12 The Defence of Natural Law

In constructing his theory of law, Bentham followed Hobbes in


defining civil law as the commands of a sovereign. At the same
time, though, he entirely rejected the idea of natural rights which
stood as the ultimate metaphysical foundation of Hobbes's political
philosophy. Bentham claimed that the supposition that there
existed rights which were prior to, or metaphysically distinct
from, the rights specified in actual social and legal conventions
involved a fundamental philosophical confusion. On the one hand,
he emphasized that the notion of a right supported by no conven-
tional rule or norm necessarily excluded the possibility of any
objective criteria which might serve to establish its existence or to
determine its meaning. On the other hand, he submitted that the
very idea of natural rights remained irreconcilable with the conten-
tion of the philosophers who adopted it that the basic institutions
of civil government were necessary to protect and secure these
rights.
In keeping with his objections to the idea of natural rights,
Bentham rejected another of Hobbes's great arguments in political
philosophy: namely, the suggestion that the sovereign law-making
institution of a political society was to be understood as the product
of a contractual agreement taking place in a state of nature. For
Hobbes, the sovereign constituted a political society only by virtue
of some presupposed act of authorization by which the members of
that society came to regard themselves as subject to an obligation to
obey the commands of the sovereign. However, Bentham did not
accept that the existence of a sovereign was to be explained in terms
of such normative concepts as those of contract, authority and
obligation. On the contrary, for Bentham, the existence of a
sovereign was to be explained purely in terms of the empirical
fact that it commanded the habitual obedience of the members of the
political society which it constituted.
According to Bentham, the basis of the legitimacy of civil
government was to be found, not in the idea of individual natural
rights, but in the prindple of utility. As Bentham conceived it, the
principle of utility was a principle of political morality which
directed governments to pursue public policies that promoted the
greatest happiness of the greatest number, this optimal condition of
overall collective social welfare being the ultimate aim of all human
morality and law. Bentham inherited the outlines of a utilitarian
philosophy of government from the great Scottish empiricist
philosopher David Hume (1711-76). Explicitly rejecting the notion
Introduction 13

that political society could originate in a voluntary contract, Hume


had claimed that the normative force of all principles of right,
obligation and justice depended upon human convention. He had
then gone on to suggest that the authority of the rules, procedures
and institutions that made up the conventional organization of
political society was determined by considerations of public
utility and advantage. Hume's attempt to ground the legitimacy
of political society in principles of enlightened self-interest fore-
shadowed many of the arguments of the great classical economists,
like Adam Smith (1723-90) and David Ricardo (1772-1823), as well
as many of the arguments of Bentham himself. In the event,
Bentham was to transform the idea of utility from the largely
explanatory principle it had been for Hume into a practical
principle for the guidance of the scientific theory of morals and
legislation that he believed to form the subject-matter of censorial
jurisprudence. In this practical application of it, the principle of
utility functioned as a criterion both for the criticism of existing law,
and for the selection of public policies that promoted the greatest
happiness of the greatest number.
Bentham believed that the principle of utility underwrote the
ideals of liberal constitutionalism which had previously been
defended in terms of the philosophical abstraction of natural
rights. For example, it was by appeal to the principle of utility
that he eventually supported the cause of parliamentary reform in
Britain, thereby anticipating the momentum towards greater demo-
cratization that dictated much of the course of British politics after
1832. Nonetheless, it was soon recognized that a utilitarian theory of
government did not necessarily secure certain fundamental values
of political morality. Thus in On Liberty (1859),9 John Stuart Mill
(1806-73) famously claimed that the liberty of the individual
person, at least in the sphere of the self-regarding actions, was an
absolute requirement of political morality, and one which implied
important limitations upon the powers exercised by government. In
claiming this, however, Mill brought to the surface the underlying
tension between the liberal ideal of individual rights and a theory of
legislation which directed government to implement public policies
designed to maximize the collective welfare of society.
The creative genius of Bentham stood behind the development of
much of English jurisprudence during the nineteenth century,
largely as a result of the influential restatement of the imperative
theory of law by his disciple John Austin (1790-1859). In 1827,
14 The Defence of Natural Law

Austin was officially appointed to the first Chair of Jurisprudence in


the newly created University of London. The lectures that he
delivered in the years after his appointment formed the basis of a
work which is still widely regarded as the classic statement of the
tenets of legal positivism: The Province of Jurisprudence Determined
(1832).10 In the Province, Austin sought to identify the essential
'differences' of positive law. In doing so, he adhered closely to the
imperative model of law constructed by Bentham. First, he held that
a rule of positive law was to be understood as a general command,
which required its subjects to perform or forbear from actions
belonging to a certain designated class. Second, he argued that the
duty or obligation created by a rule of positive law was to be
explained in terms of the power of its author to inflict a sanction or
punishment in the event of any refusal to obey the command
expressed in the rule. Third, he claimed that rules of positive law
were distinguished from other types of rule, like the laws of God or
the rules contained in what he called positive morality, in being the
laws set by a superior acknowledged to be suvereign within an
independent politiCill society. For Austin, a society existed as an
independent political society when the bulk of its members were
in a habit of obedience to a determinate political superior, where this
superior was not itself in habitual obedience to the commands
issuing from a higher law-making authority. Accordingly, Austin
insisted that it was necessary to the character of an independent
political society that its sovereign should be considered incapable of
legal limitation.
Austin believed that all the essential'differences' of positive law
could be described in terms of the basic ideas of command,
sanction, sovereign, habit of obedience and independent political
society. Like Bentham before him, then, Austin maintained that the
formal structure of the modem legal system was to be identified,
and its conditions of internal legal validity defined, through
procedures of analysis which involved no necessary reference to
any substantive principles of justice or morality. Indeed, Austin
asserted a fundamental methodological distinction between what
he called the science of jurisprudence, which was concerned with the
description of positive law as it is, and the science of legislation, which
he took to be concerned with the application of certain tests and
standards- like the principle of utility- for the determination of
positive law as it ought to be.
Introduction 15

In contrast to Bentham, Austin did little to advance the practical


science of legislation. In the context of the history of English
jurisprudence, Austin's work marked a decisive shift away from
the censorial enterprise of Bentham towards a more or less
exclusive concern with the pure exposition of the formal structure
and internal principles of law. In fact, Austin regarded himself as
engaged in the construction of a comprehensive science of general
jurisprudence. The concern of this science of general jurisprudence,
he envisaged, was to lie with the descriptive analysis of certain
concepts, such as those of duty, right, liberty, punishment and
sovereignty, which represented the so-called principles, notions and
distinctions that he believed to be common to all advanced systems
of positive law, irrespective of their particular national character-
istics.
In setting out his agenda for a science of general jurisprudence,
Austin effectively laid the foundations of the modem tradition of
analytical jurisprudence. This tradition was carried forward in
England by such legal theorists as Sir William Markby (1829-
1914) and Sir Thomas Erskine Holland (1835-1926), and in the
United States by the legal philosopher W.N. Hohfeld (1879-1918).
The analytical jurists did much to realize Austin's ideal of a science
of jurisprudence concerned solely with the formal classification of
fundamental legal concepts. Yet in doing so, their work reflected the
degree to which the analytical procedures constructed by Bentham
and Austin had made possible a dissociation of the descriptive
analysis of law both from the evaluation of its purpose or value, and
from consideration of the practical functions discharged by the law
within society.
Closely related to the analytical tradition in jurisprudence was
the famous case law method of legal education developed in the
United States by the great American jurist Christopher Columbus
Langdell (1826-1906) after his appointment as Dean of the Harvard
Law School in 1870. Essential to the case law method was the idea
of law as a system of general, logically connected principles, which
were first derived from the study of existing precedents, and then
used by the courts as a basis for the deduction of the rules that
served to settle the substantive disputes submitted for adjudication.
As taught by Langdell and his followers like Joseph Henry Beale
(1861-1943) and Samuel Williston (1861-1963), the case law method
dominated American legal culture from the 1880s until the late
16 The Defence of Natural Law

1920s. However, the case law method presupposed a highly


formalistic understanding of law as a mode of political organiza-
tion. As a result, the influence of the method helped to generate the
illusion, still pervasive in American society, that the law could be
studied and administered without regard to questions of political
morality or to issues of public policy.
The view of law adopted within the tradition of legal positivism
was challenged during the modern period by jurists belonging to
many rival schools of legal philosophy. These schools included the
nineteenth-century school of historical jurisprudence, represented
in Germany by Friedrich Carl von Savigny (1779-1861) and in
England by Sir Henry Maine (1822-88); the twentieth-century
school of American legal realism, which numbered among its
members such jurists as Oliver Wendell Holmes (1841-1935), John
Chipman Gray (1839-1915), Judge Jerome Frank (1889-1957) and
Karl Nickerson Uewellyn (1893-1%2); and the modern tradition of
sociological jurisprudence, which, in the English-speaking legal
world, is often associated with the work of the American jurist
Roscoe Pound (1870-1964), but which had its roots in the seminal
contribution to the development of a general sociology of law made
by the great European social theorists, such as Karl Marx (1818-83),
Emile Durkheim (1858-1917) and Max Weber (1864-1920).
Savigny and Maine treated jurisprudence as an historical disci-
pline rather than an analytical science. In doing so, both jurists
focused on the origins of law in social custom, while emphasizing
the historical particularity of the law of legislation. In his Ancient
Law (1861),11 Maine claimed that the establishment of formal
procedures of statutory legislation in Western societies during
and after the sixteenth century reflected the transformation in the
concept of political obligation which had distinguished the transi-
tion from medieval communities, based on the feudal principle of
social organization, to the institution of the modern sovereign state.
In pre-modern society, Maine argued, the legally binding obliga-
tions of the individual had derived from the predetermined
conditions of his participation in the feudal order. The general
political obligation imposed by the modern state, by contrast, was
characteristically assumed to arise from some voluntary agreement
on the part of its subjects. Hence, Maine concluded that the passage
from pre-modern society to the modern state had involved a
movement from status to contract. With this conclusion, however, he
implied that, so far from possessing a universal validity, the view of
Introduction 17

law adhered to by Hobbes, Bentham and Austin was conditioned


by the historical experience of those West European societies in
which contract, rather than status, had come to be accepted as the
basic principle of political organization.
In keeping with the spirit of classical legal positivism, the
American realists ascribed a fully scientific standing to jurispru-
dence. Indeed, the later realists, like Frank and llewellyn, were
explicit that a properly realist jurisprudence should aspire to be a
value-free social science. Nevertheless, the realists rejected the
positivist idea of law as sovereign commands, and, with it, the
assumption of Bentham and Austin that the foundations of the
modem legal system rested upon the law created through proce-
dures of statutory legislation. Instead, the realists claimed that the
foundations of modem law rested upon the behaviour of the courts.
By focusing on the substance of judicial behaviour, rather than on
the literal meaning of legal rules and principles, the American
realists did much to counteract the formalism of Langdell and
Williston. For example, they insisted that an empirical science of
judicial behaviour would disclose the crucial respects in which the
courts were required to consider the actual social and economic
effects of the law. In the event, the instrumentalist view of
adjudication promoted by realist jurisprudence was grounded in
a crudely utilitarian justification of the modem legal order, which
did little to close the divide between law and morality opened up
by Bentham and Austin. Even so, the realists did succeed in
undermining the absolutism of the distinction between law and
public policy asserted by theorists within the modem tradition of
analytical jurisprudence.
The great European social theorists like Durkheim and Weber
prefigured the American realists in their emphasis on the social
functions of the law. At the same time, they looked back to the
thought of theorists such as Savigny and Maine in their concern to
reconstruct the different stages in the historical development of law.
The most substantial contribution to the growth of the sociology of
law during the twentieth century was the theory of law expounded
by Weber in that portion of his great work Economy and Society
(1922) 12 known as the Rechtssoziologie, or, as translated, On Law in
Economy and SocietyP In common with the classical positivists,
Weber sought to examine the law and legal order of modem
society through the application of a value-free method of analysis.
In contrast to Bentham and Austin, however, he insisted that the
18 The Defence of Natural lAw

nature of a given system of law could be grasped only in terms of


the ideas and concepts which explained the normtltive authority
consciously ascribed to that legal system by its subjects.
In the Rechtssoziologie, Weber identified three distinct types of
legal order. Each of these types of legal order was taken to answer
to a specific concept of normative authority, which represented
what Weber called its principle of legitimate domination. First, Weber
distinguished societies in which the principle of legitimate domina-
tion was based in the traditional authority of established custom and
prescription. Second, he distinguished societies in which the idea of
legitimate domination was associated with the charismatic authority
of a leader. Third, he distinguished the principle of legal-rational
authority - a principle which he saw reflected in the modern concept
of law as a system of rules deliberately enacted and administered by
officials acting through the authorized governmental institutions of
the state.
Weber's specification of the principle of legal-rational authority
conformed closely to the positivistic view of law adopted by
Hobbes, Bentham and Austin. Indeed, Weber suggested that the
legal-rational principle of legitimate domination was to be under-
stood as involving the assumption that the normatively binding
rules of a society were always created through some voluntary act,
which served to differentiate these rules from the order of nature. It
was in this sense that he argued for a fundamental historical
connection between the ascendancy of the legal-rational principle
of legitimate domination as the basis for political organization in
modern Western societies and the development within these
societies of market economic structures based in the system of
voluntary contract.
In the latter respect, Weber's sociology of law confirmed the
substance of the claim, central to classical Marxism, that the
distinctively modern concept of law was a concept of political
organization grounded directly in the system of production
relations that structured modern bourgeois capitalist society. The-
orists like Marx and Weber did not merely expose the historical
particularity of the model of law constructed by Hobbes and his
positivist successors. They also called into question the moral
authority assigned to the ideal of the rule of law in the philosophy
of modern liberalism. Still, despite the undoubted explanatory
power of the sociology formulated by Marx and Weber, legal
positivism survived as an active tradition in jurisprudence.
Introduction 19

Indeed, the positivist view of law was explicitly associated with the
defence of the philosophy of liberal constitutionalism by its two
greatest twentieth-century exponents: the Austrian jurist and poli-
tical theorist Hans Kelsen (1881-1973) and the Oxford legal philo-
sopher H. L.A. Hart (b. 1907).
Kelsen is famed for his pure theory of law (reine Rechtslehre). With
its origins going back to before the FirSt World War, the pure theo7.
received its first systematic exposition in Reine Rechtslehre (1934), 4
and then entered firmly into the mainstream of Anglo-Saxon legal
philosophy during the 1940s and 1950s with the publication of such
works as General Theory of Law and State (1945)15 and the collection of
essays What is Justice? (1957). 16 In expounding the pure theory,
Kelsen echoed the insistence of the classical positivists upon the
fundamental distinction between law and morality. He also accep-
ted the basic thrust of the analysis of positive law developed by
Bentham and Austin. In particular, he followed Bentham and
Austin in maintaining that rules of positive law were to be
differentiated from all other types of social rule in being supported
by coercive sanctions. Nevertheless, he denied that the complex
structure of the modern legal system could be adequately described
in terms of such rudimentary concepts as those of command and
sovereign.
According to Kelsen, rules of positive law were to be understood
not as arbitrary commands or orders, but as legal norms. The validity
of these legal norms was determined by their relation to the
antecedent acts of norm-creation through which they were brought
into being. Kelsen argued that an advanced legal system was
brought into being and maintained through many different types
of norm-creating act, including such acts as those performed in
accordance with sophisticated procedures of legislation, adjud-
ication and bureaucratic regulation. However, for Kelsen, it re-
mained a distinguishing feature of the acts of norm-creation
characteristic of an advanced legal system that they were them-
selves validated by other norms belonging to the same legal system.
As a result, he did not accept Austin's assumption that the integrity
of a legal system was secured by the mere fact of the power
exercised by a political superior enjoying the habitual obedience
of its subjects. Instead, he argued that the integrity of a legal system
was grounded in a so-called Grundnorm or basic norm, that is, a norm
which did not itself depend on any other legal norm as a condition
of its own validity.
20 The Defence of Natural Law
Bentham and Austin had tended to explain the concept of the
sovereign in terms of the powers attaching to some actual law-
making institution within society. For Kelsen, however, the basic
norm was a juristic presupposition, which functioned as an essential
organizing element in the theoretical interpretation of a collection of
rules and institutions as comprising a structured legal system. The
concept of the basic norm discharged this function in the inter-
pretation of legal phenomena because it defined the supreme
ground of validity of both the various norms making up a legal
system and the various offices and procedures through which these
norms were created, enforced and annulled. In consequence, Kelsen
rejected any implication that the office of sovereign government of a
modern state was by definition subject to no legal limitations on its
own powers. On the contrary, he insisted that the basic norm
accepted within a legal system might be taken to consist in a
constitutional law which provided for the kind of separation of
official powers traditionally associated with the idea of legitimate
civil government.
The role played by the doctrine of the basic norm in the pure
theory reflected Kelsen's conviction that the modem legal system
stood as a self-sufficient system of law, whose legitimacy was
guaranteed by internal conditions of formal legal validity, rather
than by its conformity to extrinsic standards of justice and morality.
Indeed, the pure theory marked the culmination of the process by
which jurists in the tradition of Bentham and Austin had progres-
sively dissociated the descriptive analysis of law from the critical
enterprise of evaluating the grounds of its moral justification.
Kelsen himself claimed that the pure theory provided the founda-
tions for what, in the General Theory, he called the science of positive
law. The idea of a science of positive law Kelsen distinguished from
what he called the philosophy of justice, whose concern he took to lie
with subjective - and hence inherently controversial- judgments of
value about ultimate questions of justice and morality.
Kelsen distinguished the idea of a science of positive law from the
philosophy of justice because he believed that there existed certain
universal principles of legal order, and that the identification and
classification of these principles did not require the jurist to adopt
any standpoint limited by some controversial philosophy of justice
or political morality. In the event, Kelsen failed to provide a
specification of the permanent principles of legal order which
preserved the kind of neutrality between rival conceptions of
Introduction 21

political morality that he associated with the ideal of a universalist


science of positive law. Indeed, the scientific status that Kelsen
assigned to the analysis of positive law worked to guarantee an
internal connection between the metaphysical presuppositions of
the pure theory and the particular principles of justice and
legitimacy which he considered to ground the constitutional form
of modern liberal democracy.
The pure theory was intended by Kelsen to expose the metaphy-
sical illusions that he found involved in the claims of the natural
law tradition in legal philosophy. According to Kelsen, the great
theorists in the natural law tradition, like Plato, Aristotle and
Aquinas, had assumed that moral, legal and other norms of human
conduct could be inferred or derived from an objectively given
system of norms inherent in the order of the natural universe. In
assuming this, the natural law theorists had taken up the view of
human knowledge characteristic of a particular outlook in meta-
physics and epistemology which Kelsen called philosophical
absolutism. As he described it in the article 'Absolutism and
Relativism in Philosophy and Politics' (1948), 17 this outlook rested
on the supposition that the idea of justice and the other ruling
moral-political concepts expressed judgments of value whose
objective truth was guaranteed by their correspondence with some
absolute reality that existed independently of human thought and
experience.
For Kelsen, however, it was an essential truth, and one accounted
for under the terms of the pure theory of law, that moral and legal
norms were always brought into being through some human act of
norm-creation, with the result that they comprised a realm of value
which remained metaphysically distinct from the natural order.
Kelsen argued that this truth had been recognized by those
theorists, like Spinoza, Locke, Hume and Kant, who had adopted
a view of human knowledge which he called philosophical relativism.
According to these theorists, he maintained, the basic normative
concepts of justice and morality possessed no objective metaphysi-
cal foundation in an absolute order of reality. Instead, ideas of
justice and morality, and the judgments of value that these ideas
expressed, were to be explained in terms of subjective factors, like
the will or the emotions, that remained relative to the situation of
the human agent.
Kelsen claimed that Plato, Aristotle and later proponents of
philosophical absolutism like Aquinas and Hegel had generally
22 The Defence of Natural Law

defended an absolutist or autocratic view of government, and that,


in espousing a philosophy of political absolutism, they had antici-
pated the great totalitarian movements of the twentieth century. It
was a common feature of the various creeds of modern totalitarian-
ism, Kelsen suggested, that they tended to ground the authority of
the state in mystico-religious ideologies which remained fundamen-
tally opposed to the intelledual standpoint of modern science. He
went on to argue that the distinctively modem conception of science
as a value-free procedure of enquiry and analysis had come about
as the direct result of the emergence of the metaphysical and
epistemological viewpoint constitutive of philosophical relativism.
At the same time, he held that the espousal by philosophers like
Locke, Hume and Kant of a relativistic theory of value had
promoted the cause of religious and political toleration, and many
of the other principles of political morality which distinguished the
Western liberal-democratic tradition. Indeed, for Kelsen, the evolu-
tion of the democratic form of constitutional government in the
West had itself been a precondition of the intellectual advances
made by the natural and human sciences during the modem period.
In much of his later work, most notably in the essay 'Foundations
of Democracy' (1955),1 8 Kelsen wrote with great power about the
success of the modem tradition of liberal-democratic constitution-
alism in giving institutional effect to such fundamental moral-
political principles as those of individual human rights, equality
and the right of participation in the process of government. Never-
theless, it remains unclear how the pure theory of law could
underwrite the moral primacy of these principles without thereby
forfeiting the claim to ethical neutrality which Kelsen considered to
define its character. Indeed, it remains entirely unclear how the
moral primacy of the basic democratic principles could even begin
to be established by means of a science of law that denied to itself
the sort of criteria of evaluation which Kelsen believed could be
constructed only from the standpoint of the philosophy of justice.
It was a distinguishing feature of the pure theory that Kelsen
tried to describe law in purely formal terms, which made little or no
reference either to the historical circumstances surrounding its
generation, or to its actual functions within different types of
society. For his part, H. L.A. Hart explicitly rejected the attempt
to provide a narrowly formalistic definition of law. Thus, he
characterized his celebrated work The Concept of Law (1961) 19 as
an essay in descriptive sociology, in which law and legal institutions
Introduction 23

were assumed to depend upon a frequently unstated social context.


In common with Kelsen, however, he set out to defend the general
viewpoint of legal positivism through a substantial revision of the
Austinian theory of law as the commands issued by a sovereign.
In The Concept of LAw, Hart suggested that Austin's theory failed
to distinguish between the idea of primary legal rules and what Hart
called secondllry legal rules. According to Hart, primary legal rules
were rules which stipulated specific obligations, and which pro-
vided for the imposition of sanctions in the event of any failure by
the citizen to comply with the terms of these obligations. Secondary
legal rules, on the other hand, were rules which created specific
powers enabling private citizens and public officials to declare,
modify or annul primary rules of obligation. Hart maintained that
the category of secondary, or power-conferring, rules included
certain rules which laid down criteria for determining the legal
validity of the first-order rules making up a system of law. Among
this class of secondary rules were the rules which laid down the
formal procedures to be followed by officials responsible for
exercising the legislative, adjudicative and executive powers of
the state.
The analysis of secondary legal rules led Hart to reject the
substance of Austin's claim that the sovereign within an indepen-
dent political society was subject to no legal limitation on the
exercise of its various powers. Against this view, Hart submitted
that the sovereign powers vested in the governmental institutions of
a modern state were conferred, and hence limited, by secondary
legal rules. He went on to argue that the powers exercised by the
sovereign in a modern state were usually conferred and validated
by a multiplicity of secondary rules - some being formally enacted
in statutory legislation or in a basic constitutional law, with others
being declared in judicial decisions or embedded in custom and
convention. Accordingly, he concluded that the integrity of an
advanced legal system depended upon the presence of what he
called a rule of recognition. The rule of recognition was a rule of law
which served both as the ultimate ground of validity for all the
primary and secondary rules belonging to a given legal system, and
as a supreme criterion for ranking the various secondary rules
specifying the criteria of legal validity accepted within that system
in some order of precedence. For Hart, a rule of recognition was an
ultimllte legal rule - not in the sense of implying the idea of a legally
unlimited legislative power (as with Austin's sovereign), but in the
24 The Defence of Natural Law

sense that it stood as a rule which presupposed no other rule


containing criteria for the determination of its own legal validity.
In The Concept of Law, Hart did not seek to challenge the claim of
the classical positivists that there existed no necessary or concep-
tually guaranteed connection between law and morality. Indeed, he
strongly denied that it was in any sense necessary to the concept of
a legal system that its internal criteria of legal validity should make
reference to principles of justice or morality. Even so, it was a
striking feature of the argument of The Concept of Law that Hart tried
to restate the idea of natural law in terms consistent with the
general standpoint of a positivist jurisprudence. Of course, he
accepted that the metaphysical teleology of Aristotle and Aquinas
was no longer tenable as a basis for the derivation of first principles
of law and morality. On the other hand, he suggested that modem
theorists like Hobbes and Hume had established a philosophical
procedure in which permanent principles of political association
could be successfully derived from reflection on the basic condition
of human nature and the basic circumstances of human society. In
accordance with this procedure, Hart held that such empirical facts
as human vulnerability, approximate equality, limited altruism, limited
resources and limited understanding and strength of will implied the
necessity that human society should provide rules prohibiting
murder, arbitrary violence and theft, and others maintaining an
institution of private property, a division of labour and a rudimen-
tary system of promissory contract.
Hart claimed that these organizing rules and principles of human
society, and the truisms about human nature from which they were
derived, could legitimately be regarded as comprising a kind of
minimum content of natural law. In claiming this, he diverged
markedly from jurists like Kelsen who had set out to explain the
essential nature of law without regard to the actual social needs
served by the maintenance of a legal system. Nevertheless, the
identification of the rules and principles of human society embody-
ing the minimum content of natural law did not lead Hart to argue
for a necessary connection between the ideas of law and morality,
or to attempt to specify the substantive ends of law in any way
which undermined the classic positivist distinction between the
concerns of ethics and those of jurisprudence.
Although affirming the basic value-neutrality of jurisprudence,
Hart did still try to construct a normative theory of political
morality from within the conceptual framework provided by a
Introduction 25

positivist philosophy of law. Throughout his work, Hart sought to


combine the defence of a utilitarian justification of law and civil
government with the defence of the principles of modem liberal
democracy. In the articles assembled in the volume Essays on
Bentham (1982),20 he argued that Bentham's formulation of a
systematic utilitarian philosophy of government had opened up a
distinct phase in the development of the liberal culture of the
European Enlightenment. In doing so, he emphasized particularly
the historical centrality of Bentham's critique of the Enlightenment
ideology of inalienable natural rights. However, Hart's own com-
mitment to the principles of liberal democracy was informed by a
clear conviction as to the primacy of the moral and political rights of
the individual.
In 'Are There Any Natural Rights?',21 an important article publ-
ished in 1955, Hart asserted the existence of the equal right of all men
to be free. For Hart, the equal right to freedom ranked as a natural
right, in the sense that it was based directly in the bare capacity of
the human agent for rational choice and action. In its character as a
natural right, he insisted, the equal right to freedom stood as the
final ground of justification for the enforcement of the conventional
rules of law and social morality which defined the particular
distribution of individual rights and liberties in any given society.
Indeed, it was by appeal to a presup~ right of this sort that
Hart, in his Law, Liberty, and Morality (1963),22 restated the argument
of Mill in On Uberty that the legal enforcement of the norms of
social morality by the state involved a prima facie interference with
the freedom of the individual person.
In Law, Liberty, and Morality, Hart endorsed the Enlightenment
ideal of a fully critiall morality - in fact, precisely the rationalistic
ideal which inspired Bentham and Mill to condemn established
forms of law, morality and religion in the name of the principle of
utility. On the other hand, Law, Liberty, and Morality was also
intended to vindicate the primacy of the concept of individual
rights within the philosophy of liberalism. However, Hart recog-
nized that it was far from clear whether utilitarianism could be
reconciled with the view that the protection of individual rights
stood as an overriding requirement of justice.
At no stage did Hart pretend that an adequate theory of justice
and rights could be established on the foundations of utilitarianism
in its unrefined, classical form. In Punishment and Responsibility
(1968),23 for instance, he explicitly opposed any purely retributive
26 The Defence of Natural Law

principle of punishment, and suggested that the general justifying


aim of punishment was to be based in some version of utilitarian-
ism. Yet at the same time, he accepted the validity of certain non-
utilitarian principles of justice, like the principle excluding criminal
liability without fault, which structured the fair distribution of
punishment in particular cases.
In his major article 'Positivism and the Separation of Law and
Morals' (1958),24 Hart pointed out that Bentham had tried to place
these and the other basic principles of procedural justice guarantee-
ing the rights of the individual citizen within the framework of a
utilitarian theory of government. Even so, in his later writings, Hart
tended increasingly to emphasize the incompatibility, widely
perceived to exist by modem commentators, between the princi-
ples of classical utilitarianism and any theory of justice in which an
absolute moral integrity was assigned to the rights of the individual
person. Indeed, in such essays as 'Utilitarianism and Natural
Rights' (1979) 25 and 'Between Utility and Rights' (1979), 26 he
indicated that the formulation of a coherent analysis of the idea of
individual rights had emerged as an urgent task for modem moral
and political philosophers.
In suggesting this, Hart pointed to the agenda in moral and
political philosophy addressed by the theorists considered in
Chapters 3 to 5 of this volume. For Oakeshott, Hayek, Dworkin
and Finnis were uniformly committed to relating the analysis of law
and legal institutions to the basic moral-political idea of individual
rights. In this endeavour, they demonstrated, albeit in different
ways, that the idea of individual rights, and the principles of
political morality derived from it, brought into question the
adequacy of utilitarianism both as the foundation for a theory of
justice, and as a theory purporting to set out the grounds of the
moral authority of law. In the first respect, they assumed that the
concept of justice carried within itself the intuitively compelling
idea that the individual person possessed certain basic moral and
political rights - and, further to this, that any purely utilitarian
theory of political morality failed to disclose the senses in which the
rights of the individual stood as absolute and overriding require-
ments of justice. In the second respect, they tried to show that the
rule of law embodied certain inherent moral values and principles,
including the principles underwriting the rights of the individual
person, and that these internally guaranteed values and principles
of legal morality remained fundamentally irreconcilable with the
Introduction 27

view, central to utilitarianism, that the rule of law should be


thought of as, and justified in terms of its being, an instrument
for the realization of ends and objectives external to its formal
structure.
In the event, Oakeshott, Hayek, Dworkin and Fmnis remained in
radical disagreement about which rights of the individual were to
be counted as absolute and overriding requirements of justice.
Oakeshott sought to identify certain formal rights of the individual
person considered as the subject of a legal system, where the
relevant concept of a legal system was derived from analysis of
the constitutional structure of the modem European state. Hayek
focused on the particular system of rights to private property and
freedom of contract which he took to order the efficient operation of
the modem free market economy. Dworkin, by contrast, sought to
vindicate a set of rights whose meaningful exercise was conditional
on the context provided by the institutions of the modem welfare
state. For his part, Finnis identified the basic human rights as
essential requirements of a universal natural law - where this
natural law was understood to specify certain absolute moral
prohibitions, like the prohibition on the deliberate killing of the
innocent, which functioned as the ultimate guarantee of all human
rights. Despite these disagreements, the theorists were nevertheless
united in their conviction that the particular rights which defined
the basic entitlement of the individual citizen to due process in the
administration and enforcement of the law ranked as fundamental
requirements of justice. It was for this reason that the theorists were
drawn to the conclusion that the justice of law depended, in part at
least, on its conformity to an internal morality of procedure which
was given in the very concept of law itself.
In seeking to specify the principles constitutive of the procedural
morality of law, Oakeshott, Hayek, Dworkin and Finnis called into
question the claim of the legal positivists that there existed no
necessary connection between law and morality - and, with it, the
underlying methodological assumption of the positivists that law
and legal institutions could be described without reference to
normative concepts of justice and morality. Accordingly, the
theorists recognized no absolute distinction between the descrip-
tion and analysis of law (the primary theoretical concern of modem
jurisprudence) and the evaluation of the meaning, purpose and
ends of law from the critical standpoint provided by moral and
political philosophy. Indeed, they accepted - implicitly, if not
28 The Defence of Natural Law
explicitly - that the description and analysis of legal phenomena
should be governed by the criteria provided by some critically
constructed theory of political morality, or (as in the case of Finnis)
by some critically constructed theory of ethics founded in a concept
of human nature. It was in this sense that Oakeshott, Hayek,
Dworkin and Finnis looked back to the procedures in legal
philosophy which had distinguished the great pre-modem tradi-
tion of natural law.
With the exception of Finnis, however, none of the four theorists
formulated principles of law and political morality which accorded
with the standpoints in ethics and political philosophy taken up by
Plato, Aristotle and Aquinas. Plato, Aristotle and Aquinas had
started with the analysis of those human virtues whose possession
and exercise by the individual they took to constitute the highest
human good. From this starting-point, they had gone on to establish
a justification for the state and its moral authority over the citizen
which remained essentially teleological in character. Oakeshott,
Hayek and Dworkin, by contrast, started with the idea of indivi-
dual rights, and, in doing so, effectively rejected the attempt to
justify the authority of law and civil government in terms of
principles of political morality which presupposed that the rights
of the individual were to be derived from some antecedently
specified conception of the ultimate human good.
The commitment of Oakeshott, Hayek and Dworkin to the
primacy of individual rights among the various moral-political
concepts reflected a more basic commitment on their part to the
political morality of modem liberal constitutionalism - a commit-
ment which, in the event, was fully shared by Finnis. In the matter
of this commitment to the morality of liberal constitutionalism,
Oakeshott and Finnis stand out as central figures: Oakeshott,
since, in taking Hobbes as the starting-point for the understanding
of the nature of the rule of law in the modem state, he underlined
the enormity of the historical gulf separating the moral-political
concepts of classical and medieval philosophy from those central to
modern philosophy; and Finnis, because his appeal back to the
Aristotelian-Thomist tradition in ethics and political philosophy
underlined the remoteness of the natural law viewpoints of
Aristotle and Aquinas from the political conditions actually pre-
vailing in the modern world. In their commitment to the principles
of liberal constitutionalism, Oakeshott, Hayek, Dworkin and Finnis
were aligned ideologically with the great twentieth-century positi-
Introduction 29

vist jurists like Kelsen and Hart. However, the four theorists wrote
in the conviction that the moral foundations of liberal constitution-
alism could not be described in terms of a purely positivist
philosophy of law. Instead, they tried to describe the moral
foundations of the modem constitutional state in terms of basic
ideas of justice and individual rights, and, more particularly, in
terms of the specific concepts of justice and rights implicit in the
idea of the procedural morality of law. They did this in the
recognition that the idea of the procedural morality of law gave
meaning to the principle of government limited by the rule of law
which lay at the heart of the tradition of liberal constitutionalism.
The second chapter of this book is devoted to Lon L. Fuller, the
jurist widely regarded as having provided the classic exposition of
the idea of the procedural morality of law. Fuller is to be ranked
with Oakeshott, Hayek, Dworkin and Finnis by reason of his
general allegiance to the political morality of liberal constitutional-
ism. He stands apart from them, however, because of his failure to
formulate a critically conceived theory of political morality - a
failure which was seriously to compromise his attempt to defend
the natural law viewpoint in legal philosophy. Fuller is taken for
discussion in Chapter 2 because he engaged directly with many of
the traditions in legal philosophy outlined in this first chapter,
including the traditions of legal positivism, the sociology of law and
American legal realism. In the course of his engagement with these
traditions, he developed a naturalistic theory of civil adjudication
which anticipated the model of law and adjudication constructed by
Dworkin, and which also closely paralleled the analysis of judicial
reasoning set out by Hayek. At the same time, he provided a formal
specification of the principles that Oakeshott believed to make up
the procedural morality of law - although, in the event, he and
Oakeshott were to remain sharply, and importantly, divided in
their views as to the precise metaphysical grounds of law. Above
all, he sought to describe the different metaphysical assumptions
that underlay the rival traditions of natural law and legal positivism
in jurisprudence. In these and other respects, the appraisal of
Fuller's work serves to situate the thought of Oakeshott, Hayek,
Dworkin and Finnis in the context of modem legal philosophy.
2
Lon L. Fuller and the
Defence of Natural Law
It was with the publication in 1940 of The lAw in Quest of Itself that
Fuller first established his reputation as a defender of the secular
tradition of natural law in legal philosophy. The lAw in Quest of Itself
marked the start of a series of major statements about the merits of
this tradition in jurisprudence. These culminated in the Storrs
Lectures which Fuller delivered at the Yale Law School in 1963,
and which he later published as The Morality of lAw (1964). 2 In The
Morality of lAw, Fuller expounded his celebrated thesis that the
formal administration of the rule of law was governed by certain
procedural principles of legal morality, and that these procedural
principles secured precisely the internal connection between law
and morality affirmed by the great classical and medieval philoso-
phers of natural law. In this way, the book made clear most of the
respects in which Fuller called into question the distinguishing
theoretical claims about law and its moral justification advanced
by jurists, like Austin, I<elsen and Hart, who belonged to the
tradition of modern legal positivism.
The Morality of lAw formed an integral part of a proposed new
science of law which Fuller began to construct in the early 1950s.
The aims of this new science were set out in many of the articles
assembled in the p<>Sthumously published volume The Principles of
Social Order (1981).3 Fuller hoped that his project in legal science
would result in a comprehensive study of the different institutional
processes which made up the modern rule of law. In working on
the project, he brought out the important relationship between the
procedural principles of legal morality defended in The Morality of
lAw and the methods of adjudication followed by the courts in the
common law tradition. This part of the project evidenced a basic
commitment on Fuller's part to the political morality of liberal
constitutionalism which he shared with Oakeshott, Hayek and
Dworkin. However, Fuller's proposed science of legal processes
ultimately failed to achieve the unity of the essentially normative
30
Fuller and the Defence of Natural Law 31

concerns of ethics and political philosophy and the more narrowly


descriptive concerns of legal philosophy which had distinguished
the work of the medieval and classical theorists of natural law.

i. THE LAW IN QUEST OF ITSELF

The Law in Quest of Itself was Fuller's first substantial contribution to


the defence of the natural law tradition in legal philosophy.
Explicitly, most of the work focused on the positivist tradition in
modern legal thought, starting with Hobbes and moving through
the Anglo-Saxon and continental schools of Austin and Kelsen to
the school of American legal realism. Fuller defended the tradition
of natural law implicitly, however, by affirming that all jurispru-
dence rested upon underlying moral and metaphysical assump-
tions. The fundamental points of disagreement between modern
legal positivism and the earlier tradition of natural law, he insisted,
were best understood in terms of rival philosophical conceptions of
the metaphysical relationship between facts and values in the
analysis of legal phenomena. Thus, whereas legal positivists had
generally assumed 'a sharp distinction between the law that is and
the law that ought to be', theorists in the natural law tradition had
decisively rejected 'the possibility of a rigid separation of the is and
the ought'.4
The origins of the so-called fact-value, or is-ought, argument in
modern moral philosophy go back to the theory of moral judgment
outlined by Hume in Book 3 of his Treatise of Human Nature
(1739--40).5 In the Treatise, Hume argued that the subject-matter of
morality - the human virtues and vices - constituted an object not
of reason, but of the feelings or the passions. According to Hume,
the legitimate sphere of reason concerned either the discovery of
logically necessary relations between abstract ideas, as in pure
mathematics, or the discovery of factual information about the
empirically experienced world, as in the natural sciences. How-
ever, in neither of these concerns did reason discharge the practical
function specific to the faculty of moral judgment of guiding
actions. This was so, Hume insisted, because the human agent
could be moved to act only by the prospect of obtaining pleasure
or avoiding pain, and this, for Hume, remained a matter to be
determined by the passions rather than by reason. In diminishing
the role of reason in the moral life, Hume was brought to the
32 The Defence of Natural Law
conclusion that judgments of moral value were logically distinct
from judgments of fact - that is, judgments which purported to
describe the naturalistically defined qualities and attributes of their
objects. In its turn, this logical distinction led Hume to deny that a
proposition which expressed a judgment of value - like, say, a
proposition ascribing a moral obligation to a person, or a proposi-
tion commending a virtuous action - could be logically entailed by,
or be derived or inferred from, any proposition that contained mere
statements of fact. This was the idea lying behind what was later to
be encapsulated in the guiding principle of much modern moral
philosophy that no proposition asserting an ought could be permis-
sibly derived or inferred from a proposition asserting an is.
Hume's arguments about the nature of moral judgment were to
exert a profound influence over modern ethics. First and foremost,
the moral psychology outlined in the Trtlltise laid the foundations
for the emergence during the late eighteenth and nineteenth
centuries of the philosophy of utilitarianism - a philosophy which
was eventually to provide muchof the basic theoretical justification
for the public policies pursued by the governments of modern
Western societies. Famously, Hume claimed in the Treatise that
reason was, and indeed ought to be, the slave of the passions. Of
course, he did not dispute that reason had a legitimate part to play
in the formulation of moral judgments. However, he regarded
practical reason as being essentially a procedure which enabled
the agent to fulfil more effectively wants and desires whose origins
lay, not in the faculty of reason, but in the passions, as these were
stimulated by the pre-moral experience of pleasure and pain. To
this extent, Hume conceived practical reason as a form of technical
deliberation: that is, as a form of deliberation concerned with the
selection of the most efficient means for the realization of extrinsic
ends, where these ends were understood to involve the satisfaction
of wants and desires which could not themselves be subjected to the
critical scrutiny or objective appraisal of reason itself.
By establishing the primacy of the technical conception of
practical reason in this way, Hume anticipated much of the thrust
of the later tradition of utilitarianism - particularly so the central
argument of the classical utilitarians that deliberation about public
policy should be guided by the principle requiring governments to
maximize the collective welfare of society. Hume was not a
utilitarian in the rationalistic style of Bentham and Mill. None-
theless, his work in ethics did lend itself to the view, widespread
Fuller and the Defence of Natural Law 33

among the classical utilitarians, that political institutions and legal


procedures were to be regarded as mtt~ns, whose justification
consisted in their instrumental contribution to the promotion of
ends which remained external to their own structure. Indeed, the
distinction between means and ends, as opened up by Hume, lay
behind the underlying assumption of modem social and political
scientists in the empiricist tradition that public institutions and
procedures could be subject to rational analysis and objective
appraisal only to the degree that they were describable in purely
factual terms, which involved no subjective element of evaluation
regarding the moral ends and purposes that these institutions and
procedures actually served and fulfilled. Hume's means-ends
dualism, as inherent in his model of practical deliberation, was
thus intimately connected with the distinction between facts and
values established in the course of his studies in the psychology of
the moral passions.
In the latter respect, the influence which Hume exerted upon the
modern social and political sciences was closely intertwined with
his no less powerful influence upon the growth of the radical
subjectivist tradition in modem moral philosophy. In the Trtt~tise,
Hume claimed that a judgment of moral value was always to be
understood as expressing the passions, motives, sentiments, voli-
tions or other subjective states of the person making the judgment,
as these were informed by that person's original feelings of pleasure
and pain. In claiming this, however, Hume called into question the
possibility that judgments of moral value could embody genuinely
objective knowledge of the world - or, at any rate, the possibility that
such judgments could conform to the kind of objective standards of
truth and falsehood which structured the methods of enquiry in the
empirical sciences. It was in this sense that Hume stood as the
historical ancestor of the various non-cognitive theories of ethics
which proliferated during the twentieth century. What united these
theories was the idea that judgments of moral value discharged
essentially performative functions, such as the rhetorical expression
of personal attitudes or emotions, or the persuasive commendation
of particular courses of action. This basic idea, which had its roots
inHume's moral philosophy, ran through both the emotive theory
of ethics, as defended by the British philosopher A. J. Ayer in
Language, Truth and Logic (1936)6 and the American ethicist Charles
L. Stevenson in Ethics and Language (1944)7 and Facts and Values
(1963),8 and the theory of ethical prescriptivism propounded by the
34 The Defence of Natural Law

Oxford moral philosopher R. M. Hare in The Langwzge of Morals


(1952),9 Freedom and Reason (1963) 10 and Moral Thinking (1981).11
Philosophers like Ayer and Hare looked back directly to the
disjunction implied by Hume in the Treatise between the factual or
descriptive discourse of the natural sciences and the essentially
evaluative language of morals and moral argument. The notion of
a fundamental contrast between science and morality was deeply
embedded in the philosophical tradition of empiricism in Britain, a
tradition to which the Treatise was itself an outstanding contribu-
tion. In common with Locke, his most important predecessor in the
empiricist tradition, Hume wrote presupposing the mechanistic
view of the natural universe which gained its ascendancy over
the modem European consciousness during the scientific revolution
of the sixteenth and seventeenth centuries. According to this view,
nature was conceived as an essentially amoral realm, which
comprised a plurality of material objects whose interactions were
ordered, not by the principle of a final end or purpose, but by
purely mechanical principles of cause and effect. Historically, the
conception of nature as a mechanical system superseded the
classical teleological view of nature central to the Aristotelian
metaphysical philosophy, a conception in which the whole natural
universe had been interpreted as a purposive order possessing
inherent value. In consequence, the establishment of a science of
nature founded upon mechanical principles of causal explanation
led inevitably to the conclusion of Hume in the Treatise that the final
sanction for human morality was to be found not in the natural
order of the universe - which remained, as it were, indifferent to
values - but in the psychological condition of the human agent.
Hume regarded his investigation into the principles of moral
psychology as forming part of an empirical science of human
nature. The study of moral experience conducted in the third book
of the Treatise was thus complementary to the theory of mind set out
in Books 1 and 2. In developing this theory, Hume built upon, and
substantially revised, the empiricist philosophy of mind with which
Locke, in An Essay concerning Human Understanding (1690),12 had
tried to validate the procedures of modem scientific enquiry.
However, the modifications that Hume made to the core tenets of
Lockean empiricism committed him to a deep-rooted scepticism
about the objective claims of all human knowledge - a scepticism
which, as with his notorious denial that the physical world was
governed by objectively valid laws of cause and effect, subverted
Fuller and the Defence of Natural Law 35

many of the bedrock assumptions about the intelligibility of the


natural universe constitutive of the modem scientific outlook. It was
left to Kant, Hume's great successor, to construct a philosophy of
mind adequate to the task of vindicating the objective foundations
of modern science.
Kant did not accept that the claims of modem science to promote
objective knowledge of the natural universe could be sustained by
the empiricist theory of mind of the sort developed by Locke and
Hume. Accordingly, he set out to explain the presuppositions of
modern science from the standpoint of the philosophy of transcen-
dental idealism. Kant expounded his philosophy of transcendental
idealism in its relation to science in the Critique of Pure Retlson (1781;
2nd ed., rev. 1787).13 In this work, Kant argued that all subjective
experience of the natural world was governed by certain so-called
categories of the understanding. For Kant, these categories were basic
and original forms of human thought, which possessed a universal,
or a priori, validity. In this sense, the categories explained the
objective necessity of the fundamental principles of scientific
knowledge - including the principle, which Hume had challen-
ged, that the physical universe was made up of enduring objects
whose interactions conformed to regular laws of cause and effect.
However, Kant insisted that the categories of the understanding
could yield knowledge of the natural order only to the extent that it
appeared as an object of possible experience - that is, to the extent
that the natural order presented itself to the human subject in
immediate sensation as an endless succession of causally connec-
ted phenomena. In consequence, Kant denied that the categories
could generate genuine knowledge of any object considered in its
character as a noumenon, or thing-in-itself- that is, in its character as
an object conceived in abstraction from the conditions for its
empirical experience.
In the Critique of Pure Retlson, Kant maintained that the great
arguments of classical metaphysical philosophy - most notably
those purporting to demonstrate the necessary existence of God,
the possibility of human freedom and the immortality of the soul -
were evidence of the constant endeavour of human reason to
formulate concepts which operated independently of any context
for their meaningful application to the world of phenomena. For
Kant, the arguments of traditional metaphysical philosophy emlxr
died no real theoretical knowledge of the natural order, or of some
other transcendent order of being. On the contrary, he concluded
36 The Defence of Natural Law
that these arguments had resulted only in certain conceptual
confusions - the so-called antinomies of pure reason - which, like
the contradiction between the ideas of freedom and determinism,
were inherently incapable of resolution under the intellectual
constraints imposed by the categories of the understanding.
In reviewing the antinomies of pure reason, Kant called into
question the intelligibility of the metaphysical claims of rational
theology. In particular, he decisively rejected the physico-theological
argument central to Aristotelian metaphysical philosophy, in which
the existence of God had been inferred from a purposive design to
be observed in the supposedly teleological ordering of the natural
universe. Kant did not completely abandon the teleological idiom of
classical Aristotelianism. In the Critique of Judgment (1790),14 he held
that the concept of an ultimate purpose to the created universe was
essential to the meaningful scientific interpretation of natural
phenomena. More generally, he argued that the great metaphysical
ideas of pure reason, like those of God and freedom, functioned as
regulative principles for the guidance of the human understanding
in its investigation of the realm of created nature. At the same time,
however, he emphasized that the metaphysical claims implicit in
the ideas of pure reason could never possess the same cognitive
status as that enjoyed by the theoretical claims of the empirical
sciences. To the extent that Kant accepted that the ideas of God,
freedom and immortality possessed intellectual validity for the
human subject, then this was so because he argued that these
ideas expressed moral truths, whose evidential grounds were
disclosed to reason in its practiall, rather than theoretical, form.
Kant explored the nature of Eractical reason in the Foundations of
the Meta;'hysics of Morals (1785) 5 and the Critique of Practical Reason
(1788). 1 In these works, Kant sought to ground the objective
necessity of human morality upon an analysis of the formal
imperative structure of practical deliberation. In doing so, he
entirely rejected Hume's view that practical deliberation consisted
in technical reasoning about the means appropriate to the satisfac-
tion of pre-moral wants and desires. For Kant, such wants and
desires could generate only heteronomous principles of the will,
which did nothing to release the human agent from the empirically
determined conditions of his implication in the realm of nature, as
ordered by the laws of cause and effect. In contrast to Hume, Kant
insisted that the legitimate exercise of practical deliberation enabled
the agent to generate - or legislate - an autonomously determined
Fuller and the Defence of Natural Lllw 37

moral law, which had application to the ultimate ends of human


conduct, and not merely to the means for their realization. This was
so, Kant argued, because practical reason could determine rules or
maxims of conduct which answered to the formal procedural
conditions imposed by what he called the categorical imperative.
According to Kant's specification of it, the categorical imperative
was an injunction which addressed itself directly to the autonomous
rational nature of the agent, without regard to his material wants and
desires. The idea of the categorical imperative thus contained
within itself the possibility that human practical reason could
function as the autonomous source of a moral law, where this law
was not dependent for its normative force upon any of the
empirically conditioned wants or desires of the agent. In this way,
the categorical imperative guaranteed the objective reality of moral
freedom, which Kant believed to consist in the agent liberating
himself from the order of natural necessity through the act of
obeying some rule or law that proceeded from his own will.
Kant went on to claim that the philosophy of practical reason, as
based in the principle of the categorical imperative, worked to
overcome the metaphysical antinomy of freedom and determinism
- the antinomy which, in the Critique of Pure Reason, he had argued
could not be resolved through an application of the categories of the
understanding that constituted the viewpoint of science. In the first
Critique, Kant had suggested that, from the perspective of pure
reason, there remained an irreconcilable opposition between the
idea of the human person as an object - that is, as a natural
organism belonging to the phenomenal world determined by the
laws of material causation - and the idea of the person as a moral
agent who freely obeyed a law originating in his own rational will.
However, in the Critique of Practical Reason, Kant held that the inner
imperative logic of practical deliberation compelled the agent to
think of himself in accordance with the concept of freedom - that is,
as a person conscious of his own existence as a thing-in-itself, and
hence as a being situated in a noumenal order governed by a moral
law transparent to his own autonomous reason.
Kant's arguments for the autonomy of practical reason were of
central importance in the history of modem moral philosophy. In
arguing for the reality of human freedom, Kant was driven to
assume an absolute metaphysical disjunction between the outlook
of the modem scientific consciousness - in which the whole realm
of the natural universe, including the sphere of human conduct
38 The Defence of Natural Law
itself, was understood in terms of principles of causal explanation -
and the outlook of the ordinary moral consciousness - in which
human conduct was understood in terms of values grounded in the
autonomous rational nature of the agent. In many ways, this
I<antian disjunction reflected the full range of cultural significances
attaching to the metaphysical distinction between facts and values
asserted by Hume in the Tretztise. In particular, Kant's assumption of
a dualism between the scientific and practical modes of human
thought represented the historical moment at which the ideal of an
ethics, or theory of political morality, based in normative principles
of natural law became radically problematic for modem philoso-
phy. Not only did Kant preclude the possibility of an ethics
governed by a method of practical deliberation in which moral
values were to be derived from reflection upon the actual constit-
ution of human nature and its empirically determined ends and
purposes. More strongly, Kant called into question the very
possibility of a unified intellectual perspective, such as had dist-
inguished classical and medieval philosophy, in which the moral
and empirical sciences were seen as being continuous with each
other in their common concern with a ruling ethical conception of
universal human nature.
Throughout his work, Fuller took up and responded to the
implications for the study of law of the metaphysical dualisms
between facts and values, science and morality, and means and
ends, as these had been established by the philosophy of Hume and
Kant. Indeed, much of Fuller's importance as a jurist derived from
his determination to base the challenge to legal positivism upon a
firm insistence as to the contestability of the fact-value distinction in
the form in which it had been understood by Hume. Fuller
recognized that the fact-value distinction was crucial in explaining
the intimate connections between the radical subjectivist view of
morality promoted by modem non-cognitive theories of ethics, the
instrumentalist view of legal and political institutions promoted by
the philosophy of utilitarianism, and the value-neutral view of legal
and political science promoted by modem jurists and political
theorists. Fuller believed that all of these viewpoints were pre-
supposed in the analysis of law developed by the leading legal
positivists. This was why he set out to formulate a theory of law
which would not only discredit the Humean fact-value distinction,
but which would also check the tendencies towards moral subject-
ivism, political instrumentalism and value-free methodology that
Fuller and the Defence of Natural Law 39

he saw running through the whole tradition of positivist juris-


prudence.
In formulating his legal theory, Fuller intended to redefine the
relationship between means and ends in the analysis of legal
phenomena, and to do this in such a way as to counter the
instrumentalist view of law subscribed to by the positivist jurists.
In seeking to overthrow utilitarianism as a theory of political
morality, Fuller implied powerful affinities between his own aims
in legal philosophy and Kant's aims in constructing the philosophy
of practical reason. He affirmed, in Kantian spirit, that human
reason was competent to examine, and indeed to create, the basic
forms of legal order considered in their character as ends, rather
than in their character as means. However, he also declared it as his
ambition to recover for jurisprudence precisely the unified intellec-
tual perspective whose final disintegration had been evidenced in
the philosophy of Kant. Thus, in The Law in Quest of Itself, he
explicitly commended the pre-modem tradition of natural law
philosophy for establishing procedures of legal analysis which
allowed for a synthesis of the concerns of jurisprudence with those
of history, economics, the social sciences and ethics- although, in
the event, he ultimately failed to establish a fully ethical conception
of human nature which abolished the Kantian disjunction between
science and morality.
Fuller did not seek to combat the arguments of Hume and Kant in
their relation to the metaphysical presuppositions governing the
methods of enquiry constitutive of the natural sciences. At any rate,
he certainly did not dispute the primacy of mechanical principles of
explanation in the scientific investigation of the natural universe.
What Fuller did challenge, however, was the implication of the legal
positivists that the concepts and procedures constitutive of the
natural sciences could be applied to the study of law and its
institutions. Against this view, he emphasized that jurisprudence
was a discipline of enquiry whose subject-matter, law, demanded a
mode of analysis which united the discourses of description and
evaluation that Hume and Kant had implied remained permanently
divided. This was why, in The Law in Quest of Itself, he deliberately
invoked the metaphysical concept of purpose, which, in its fully
Aristotelian sense, had been effectively removed by Hume and Kant
from the sphere of the natural sciences- with, of course, potentially
fatal implications for the cause of the natural law viewpoint in
ethics and jurisprudence. It was by appeal to this concept that Fuller
40 The Defence of Natural Law

endeavoured to refute the fact-value distinction, and, in doing so,


to liberate legal philosophy from the positivistic assumption of an
absolute distinction between the elements of description and
evaluation in the language of the law.
In The l.Jlw in Quest of Itself, Fuller denied that it was possible to
dissociate the description of law from its evaluation in the absolute
sense implied by the mainstream theorists of legal positivism. This
was so, he maintained, because the law constituted a form of
purposive human activity. As a result, the adequate description of
legal reality always demanded an interpretation of the purposes
which the law was intended to serve. However, Fuller insisted that
this purposive idiom of interpretation involved exactly the element
of evaluation which the positivist theorists had sought to exclude
from the analysis of legal phenomena.
For Fuller, the positivistic distinction between the description and
evaluation of law corresponded to no dualism of facts and values
inherent in legal reality itself. On the contrary, he argued that this
distinction emerged only as a consequence of the ethical and
metaphysical assumptions which organized the specific analytical
procedures favoured by the positivist jurists. Indeed, he went on to
emphasize that the legal theories expounded by the positivists were
flawed by reason of an unstable tension between their endeavour
to describe legal reality and the irreducibly interpretative character
of their preferred methods of analysis. This was true above all,
Fuller suggested, of Austin's theory of sovereignty. On the one
hand, Austin had regarded the sovereign as something real - a
reading of Austin's theory confirmed by Austin's tendency to
identify the sovereign within an independent political society with
some actually existing institution exercising supreme law-making
power. On the other hand, Fuller stressed that Austin had also
regarded the sovereign as a juristic construction, which he used in
order to impose a conceptual coherence upon the interpretation of
the distinguishing marks and attributes of the modern legal system.
Fuller claimed that this ambivalence in Austin's work was
reflected in the schism between the successor schools of legal
theory within the positivist tradition. For example, he viewed the
divergence between the American realist movement and the Vienna
school of Kelsen as being a sign of the general failure of the
positivist tradition to establish a jurisprudence which acknowl-
edged the interdependence of facts and values in the interpretation
of legal phenomena. According to Fuller, the legal realists had
Fuller and the Defence of Natural Law 41

assumed that law was an objectively identifiable reality, which


they attempted to describe in terms of observable facts about the
behaviour of judicial officials. However, this empirical definition of
law did not answer to the normative status ascribed to legal rules
and institutions by their subjects. Unlike the realists, Kelsen had
explicitly affirmed the normative status of law and legal institu-
tions. Nevertheless, Fuller stressed that Kelsen had brought out the
normativity of law by grounding the analysis of legal order upon
the pure juristic assumption of the basic norm - an assumption
which, in Kelsen's account, was independent of any factual propos-
ition concerning the actual existing structure of law and its ends. As
a result, Kelsen had constructed the pure theory in such a way that
it remained 'utterly indifferent to ethics',17 with the jurist forbidden
by its terms from attending to the content of the law. In this respect,
Fuller suggested, Kelsen had complemented the work of the
American realists in defending an essentially scientific theory of
law, which excluded the possibility of any examination of the
purposive quality of legal phenomena.
In his historical review of the positivist tradition, Fuller traced the
process by which the positivist jurists had come progressively to
divorce the analytical description of law from the critical evaluation
of its inherent purposes. It was Hobbes, he argued, who had
originally formulated the analytical schematization of the structure
and organization of modem law upon which Bentham, Austin and
Kelsen had modelled their own very much more sophisticated legal
theories. Unlike the later legal positivists, however, Hobbes had
sought to ground the analysis of law upon certain normative
principles of natural law, which specified the maintenance of a
minimum of peace and order as the fundamental purpose of legal rules
and institutions. It was from the premise of this underlying purpose
of political order, Fuller claimed, that Hobbes had derived the
necessity of a sovereign authorized to promulgate and enforce a
system of positive law, together with the legitimacy of the oblig-
ation falling upon the civil subject to comply with even the
'unreasonable and unjust commands of the Sovereign' .18 For
Fuller, then, Hobbes's theory of the sovereign had actually pre-
supposed a normative justification for the legal and political
institutions of the modem state that remained based in principles
of natural law. Accordingly, Fuller insisted that Hobbes's moder-
nity, and his central relevance for the later tradition of legal
positivism, consisted in his recognition that the requirements of
42 The Defence of Natural Law

peace and order within organized political society could not be


fulfilled by natural reason alone, but only by the voluntary creation
of a sovereign power authorized to attach a coercive sanction to
antecedently determined principles of natural law.
Fuller submitted that the mainstream legal positivists had
abandoned the purposive justification of law presupposed in
Hobbes's civil philosophy. The positivists had followed Hobbes in
taking the concept of the sovereign to be essential to the analysis of
the modem rule of law. At the same time, though, the positivists
had detached the concept of the sovereign from the principles of
natural law which Hobbes had assumed to be necessary to its norm-
ative authority. Thus, whereas Hobbes had conceived the sovereign
as an ethical desideratum, jurists in the Austinian tradition had
tended to construe the sovereign as 'something existing indepen-
dently of the objects it was intended to accomplish'.19
In doing this, Fuller argued, the positivists had transformed the
meaning of the cardinal distinction drawn by Hobbes between the
ideas of law and morality. Hobbes, he suggested, had viewed the
maintenance of a clear line of demarcation between positive law
and the larger sphere of social morality as being essential to the
basic function or purpose of the sovereign, as underwritten by
natural law, of imposing an effective civil peace. However, Fuller
emphasized that, while retaining Hobbes's distinction between law
and morality, the legal positivists had articulated no moral or
political reasons which justified the theoretical significance that
they ascribed to it. In contrast to Hobbes, they had regarded the
maintenance of this distinction, not as a practical requirement
arising from antecedent principles of natural law, but as a method-
ological requirement that worked to guarantee the scientific integ-
rity of their procedures in legal philosophy.
Fuller concluded that the positivists had misrepresented legal
reality through their determination to exclude all considerations of
morality from the analytical description of law. For instance, he
pointed out that the positivists had generally adopted the concept
of the sovereign as a juristic principle which served to ground the
systematic unity of the rule of law in a modem state. Nevertheless,
he insisted that the positivists had failed to explain the exact moral
or political status of the legal principles which limited the exercise
by the state of its sovereign powers.
Fuller also claimed that the positivists had failed to provide a
persuasive theory of adjudication for the decision of legal disputes
Fuller and the Defence of Natural Law 43

which were not covered by existing statutory legislation or by


established judicial precedents, and which, as a result, exposed
gaps in the positive law of a political community. Fuller was later to
suggest that such cases were generally decided by the courts acting
in accordance with disciplined procedures of judicial reasoning,
which appealed directly to the extensive body of legal principles
and standards of political morality that underlay the structure of
any given system of positive law. In doing so, he implied that these
procedures presupposed the acceptance by the courts of a method
for the purposive interpretation of the law which, by its very nature,
told against any rigid, positivistic distinction between the descrip-
tion of legal rules and the judicial evaluation of their justifying end
or point.
In stressing the purposive dimension of law in relation to the
problem of hard cases, Fuller anticipated a great deal of the anti-
posivitist thrust of the theory of law and adjudication which
Dworkin was to expound in Taking Rights Seriously and Law's
Empire. As did Dworkin after him, Fuller believed that attention
to the legal rules and principles determined by the courts in the
adjudication of hard cases would resolve many of the issues in
jurisprudence that divided the classic formulations of natural law
philosophy from the orthodox theories of modem legal positivism.
Indeed, in the article 'Reason and Fiat in Case Law' (1946),20 he was
explicit that study of the case law developed by the common law
courts would call into question any legal philosophy in which the
law was identified exclusively with either 'natural reason or state
fiat'.2t
Fuller was eventually to include a detailed critique of the practice
of the common law courts in his last full-length book: Anlltomy of the
Law (1968). 22 Before the publication of this work, Fuller made a
number of important contributions to the understanding of the logic
of civil adjudication. The first of these was contained in The Problems
of ]urisprudenc;e'l3 - an anthology of readings from legal philosopy
that Fuller published in a temporary edition in 1949.

ii. EUNOMICS AND THE MORALITY OF LAW

In The Problems of Jurisprudence, Fuller expressly rejected the view of


adjudication that he associated with the work of jurists in the
Austinian tradition. Austin and later legal positivists, like Kelsen,
44 The Defence of Natural lAw

had characteristically implied that the legitimacy of adjudication


derived from some specific delegation of authority to the courts by
the supreme law-making power of society. For Fuller, however, this
view of the judicial office offered no basis for distinguishing the
process of adjudication from that of legislation. In contrast to the
positivists, Fuller argued that the legitimacy of adjudication derived
from the particular moral force attaching to the decisions of an
impartial tribunal. He went on to ascribe the moral force intrinsic
to judicial decisions to their conformity to certain conditions of form
and procedure, which included: the condition that a judge should
'not act on his own initiative, but on the application of one or both
of the disputants', the condition that a judge should decide a case
solely on 'the basis of the evidence and arguments presented to him
by the parties', and the condition that each party to a di~ute
should be given 'ample opportunity to present his case'. 4 In
combination, these procedural conditions comprised an internal
morality of adjudication, which Fuller regarded both as under-
pinning the accepted standards of judicial impartiality, and as
defining the basic principles of legal certainty which bound the
courts to observe strict canons of judicial relevance in the decision
of individual cases.
During the 1950s and 1960s, Fuller sought to isolate the special
feature of adjudication which explained the normative authority of
the procedural conditions detailed in The Problems of Jurisprudence.
The overall direction of Fuller's work in this area was to be revealed
with the posthumous publication in the Harvard Law Review of the
1961 version of a major essay on the nature of civil adjudication:
'The Forms and Limits of Adjudication'.25 In this essay, Fuller
suggested that the defining feature of adjudication as an institu-
tional process of decision was that it guaranteed 'the affected party
a peculiar form of participation in the decision, that of presenting
proofs and reasoned arguments for a decision in his favor'. 26 Fuller
held that this principle of guaranteed participation underwrote the
institutional requirement that the courts should be independent of
the executive and legislative branches of government, in addition to
explaining the status of adversarial presentation before a disinter-
ested third party as the standard form of adjudication. In the latter
respect, the principle of guaranteed participation confirmed the
distinction that Fuller drew in 'The Adversary System' (1961} 27
between adjudication and procedures, like inquisitorial or bureau-
cratic examination, in which the office of inquiry was responsible for
Fuller and the Defence of Natural Law 45

initiating its own proceedings. The principle likewise confirmed the


distinctions that Fuller drew in important articles published in
196328 and 1971 29 between adjudication and essentially managerial
processes, like arbitration and medilltion, which were not governed
by any internal procedural requirement that disputes should be
decided by reference to established rules and principles.
In The Problems of Jurisprudence, Fuller listed adjudication as one of
four constitutive principles of social order - the other three being
common need, legitimated power and contract. In the concluding
chapter of the book, 'The Principles of Order', he tried to identify
the distinguishing features of these basic principles of social
organization. In an important review article published in 1954,
'American Legal Philosophy at Mid-Century',30 Fuller made it
clear that the type of enquiry suggested in The Problems of
Jurisprudence demanded nothing less than the formulation of what
he termed 'the science, theory or study of good order and workable
arrangements'. The particular originality which Fuller claimed for
this so-called science of eunomics lay in its concern with the basic
forms of legal order as processes, whose interactions with society
were governed by rules and principles which remained internal to
their structure. By examining the internal operation and structure of
the main legal processes, he argued, the science of eunomics would
identify and explain the 'fundamental and pervasive principles of
social order'.31
Fuller planned to devote an entire volume to eunomics. However,
save for an unpublished chapter dating from the late 1950s, 'Means
and Ends',32 the book remained unwritten at the time of his death in
1978. Instead, there was a series of books and articles in which
Fuller analyzed the principal forms of social and legal ordering,
including adjudication, customary law, contract, statutory legisla-
tion, arbitration and mediation. In these writings, Fuller made clear
his opposition to the various non-cognitive theories of moral value
whose roots he recognized to lie in the modem tradition in ethics
that began with Hume and Kant. At the same time, he challenged
the predominantly instrumentalist conception of legal and political
order which he saw reflected in the prevailing utilitarian outlook of
the contemporary social sciences.
In 'Means and Ends', Fuller complained that the contemporary
moral and social sciences adhered uncritically to a positivistic
dualism between means and ends in the analysis of legal and
political organization. Although conceding that most moral and
46 The Defence of Natural Lllw

social scientists had correctly understood the design of public


procedures and institutions to be subject to rational deliberation,
Fuller argued that they nonetheless conceived the construction
and maintenance of such social means to be 'a mere matter of
"technique"'. In consequence, modem moral and social theorists
had tended to adopt the essentially Humean view that reflection
upon the ends promoted by social means involved little more than
arbitrary choices or "'value preferences"'. However, Fuller ques-
tioned the assumption by modem theorists that procedural and
institutional means could be made to facilitate 'any desired end',
and that political objectives could be effectively pursued indepen-
dently of the 'intervening rigidities of social structure' .33 On the
contrary, he affirmed that public procedures and institutions
embodied intrinsic moral values, which always implied formal
restrictions upon the ends and objectives that could be legitimately
realized through them.
In attacking the instrumentalist analysis of the means-ends
relationship, Fuller looked back to the expressivist view of social
order whose origins lay in the arguments of such philosophers as
Rousseau in the Social Contract (1762) 34 and Hegel in the Phenomen-
ology of Spirit (1807)35 and the Philosophy of Right (1821).36 Rousseau
and Hegel rejected the implication of earlier contract theorists like
Hobbes and Locke that the nature and identity of the individual
were fixed prior to his membership of political society. Instead, they
argued that the identity of the individual was essentially an
achievement, which depended upon the degree to which the
individual expressed himself in the public realm of procedures,
customs and institutions that made up society and the state. This
was why Hegel, in the Philosophy of Right, held that the realm of
political society and the state embodied concrete moral ends and
values that were internal to the institutions through which it came
to be constituted as a sphere of what he termed objective spirit.
In the article 'Freedom- A Suggested Analysis' (1955),37 Fuller
explicitly associated the study of social order with the so-called
positive conception of political liberty, as a freedom to participate
actively in society, which intellectual historians like Sir Isaiah Berlin
and J. L. Talman claimed had its roots in the philosophical tradition
of Rousseau and Hegel. With equal explicitness, Fuller disavowed
the negative conception of liberty, as a freedom from legal and political
constraint, which the same commentators found running through
the thought of English political theorists from Hobbes and Locke to
Fuller and the Defence of Natural Law 47

Mill. Indeed, he expressly condemned Mill for having implied in


On Liberty that public forms of legal and political regulation were
ultimately 'limitations on freedom' or 'restrictions on choice', rather
than processes through which the free moral choices and decisions
of the individual person could be given 'social effect'.38 In these
respects, the science of eunomics departed radically from the
various restatements of the political morality of liberalism offered
by the leading theorists of postwar anti-totalitarianism, including
those offered by Berlin in Two Concepts of Liberty (1958)39 and
Talmon in The Origins of Totalitarian Democracy (1952)40 and Political
Messianism: The Romantic Phllse (1960)41, and earlier by Sir Karl
Popper in The Open Society and its Enemies (1945).42
Fuller hoped that eunomics would provide a purposive explan-
ation of law and legal institutions which avoided any final
distinction between their description and evaluation. In doing so,
he envisaged eunomics as leading to a revision of moral and
metaphysical concepts in favour of the philosophical naturalism
defended in The Law in Quest of Itself. Hence in 'Means and Ends', he
argued that eunomics established, not only the basic principles of
social order, but also such principles of 'good social order' as were
'just, fair, workable, effective, and respectful of human dignity'.
Even so, he was emphatic that the examination of legal processes
promoted by eunomics did not point towards any final resolution of
the fundamental questions of moral philosophy, as these related to
the nature of 'the highest human good' or to 'the ultimate aim of
human life'. In fact, he insisted that eunomics would disclose the
principles of an essentially '"technological natural law"', in the
sense that the methods of eunomics 'postponed' evaluative judg-
ments about law until after the legal theorist had constructed an
'ethically neutral' analysis of legal order.43 To this extent, eunomics
formed a value-free discipline of juristic enquiry, which Fuller did
not try to present as achieving the full integration of the concerns of
moral and political philosophy with those of legal theory that had
characterized the pre-modern tradition of natural law in jurispru-
dence. However, the quality of ethical neutrality which Fuller
claimed for eunomics was very seriously to weaken the argument
of his most substantial contribution to this new science of legal
processes: The Morality of Law.
In The Morality of Law, Fuller specified what he regarded as the
underlying principles of legal morality. These he listed as the basic
requirements of generality, promulgation, non-retroactivity, clarity, non-
48 The Defence of Natural Law

contradiction, possibility of compliance, constancy of law through time,


and congruence between official action and declared rule in the admin-
istration of the law. Fuller held that these requirements constituted
a set of procedural or institutional, rather than substantive, principles
of natural law. Accordingly, he denied that the requirements
furnished any criteria for evaluating the justice or morality of the
content of the positive law of actual political communities. The
formulation of such criteria, he argued, had been the primary
concern of theorists belonging to the pre-modem tradition of
natural law philosophy. Thus, theorists like Aquinas had expoun-
ded substantive principles of natural law in order to assess the
conformity of the positive law of particular states to essentially non-
legal standards of justice and morality, and to determine by
reference to these standards 'the proper ends to be sought through
legal rules'." It was in this sense that jurists in the Thomist tradition
had conceived the idea of natural law to pertain to what Fuller
called the external morality of law.
Fuller maintained that the procedural or institutional principles
of natural law formed an inner or internal morality of law. These
internal requirements of legal morality provided, first, that a system
of law should actually be a system of general rules, rather than just a
collection of ad hoc injunctions or orders addressed to designated
individuals; second, that legal rules should be adequately publi-
cized to their subjects through procedures of formal promulgation;
third, that the law should, for the most part, be prospective, and not
retrospective, in its effect; fourth, that the law should, in principle,
be comprehensible to its subjects; fifth, that the duties imposed by
particular rules belonging to the same legal system should not be
mutally contradictory; sixth, that legal obligations should be
capable of fulfilment by their subjects; seventh, that the law should
not be subject to frequent alteration; and eighth, that the officials of
a legal system should be bound by existing law in both their public
and private capacities, thereby ensuring a congruence between
official action and declared rule.
Fuller did not suggest that the normative authority of these eight
interlocking principles of legal morality presupposed any of the
larger metaphysical claims which had distinguished the Aristote-
lian-Thomist philosophy of natural law. On the contrary, he argued
that the normative authority of the principles derived from estab-
lished judicial practice, or from explicit provisions contained in
conventional sources of law. Thus, the principle excluding laws
Fuller and the Defence of Natural Law 49

which were incapable of fulfilment was reflected in the general


judicial practice of making legal liability contingent on the proof of
harmful intent, or on the demonstration of fault or neglect; whereas
the prohibition upon retroactive legislation was enshrined in the
clauses of the United States Constitution which expressly forbade
the passing of ex post facto laws. Nevertheless, Fuller affirmed that
the eight principles of legal procedure embodied an internally
guaranteed relationship between law and morality. To this extent,
the procedural theory of natural law was taken by Fuller to counter
the methodological assumption of the mainstream positivist jurists
that the structural organization of a legal system could be analyzed
in terms of formal conditions of legal validity, which made no
reference to considerations of justice or morality. In the event of its
deviation from the internal principles of legal morality, Fuller
insisted, no social norm could be identified as a genuine rule of
law for a given political community, whether or not it satisfied the
prevailing criteria of strict legal validity actually accepted within
that community.
The eighth principle of the internal morality of law, the require-
ment of congruence between official action and declared rule, was
crucial to the argument of The Morality of Law. Fuller regarded this
requirement as grounding the systematic interdependence of the
different principles of legal order, in the sense that the basis of the
congruence which the requirement described was eroded by any
violation of the other principles of procedural morality. Hence, the
failure by a government to prescribe unambiguous general rules, its
enactment of contradictory or retrospectively binding legislation, or
its persistent revision of the law worked to undermine the public
confidence that government would act in deference to the rule of
law which, for Fuller, was the basis of all legitimate political
authority. In this way, the requirement of congruence brought out
the intimate connection which Fuller took to obtain between the
procedural morality of law and the ideals of limited constitutional
government.
Like Oakeshott, Fuller considered the procedural morality of law
to be central to the political morality of constitutionalism. In
contrast to Oakeshott, though, Fuller did not identify the founda-
tions of constitutional rule with the structure of sovereign rights
exercised by the government of a modem state. In fact, he criticized
the whole tendency of political theorists in the tradition of Hobbes
to regard the essence of law as 'a pyramidal structure of state
50 The Defence of Natural lAw
power' .45 Fuller allowed that modem sovereign states characteris-
tically claimed an unconditional power of legislation - as with the
'unlimited competence in lawmaking' ascribed to Parliament under
the law of the United Kingdom. However, he insisted that the
validity of the acts of a sovereign legislative body, like the United
Kingdom Parliament, depended ultimately upon its adherence to
'the law of its own internal procedure'.46 In this sense, Fuller
implied that the complex governmental structure which held and
exercised sovereign rights of legislation in a modem political
community was actually a product of the law, rather than the
foundational principle of its organization.
Fuller believed that the theory of procedural natural law bore
directly on such central issues in political philosophy as the
legitimacy of the authority claimed by the modem state, and the
morality of the obligation of compliance with law which the state
imposed upon the citizen. In addressing these issues, Fuller
squarely rejected the voluntarist analysis of political obligation
developed by philosophers belonging to the tradition of the social
contract. Political theorists like Hobbes and Locke had taken the
duty of compliance with law to be generated by the explicit
promissory agreement of its subjects. Fuller, by contrast, suggested
that the legitimacy of the rule of law, and the morality of the
obligation of compliance that it imposed, derived from its confor-
mity to a structural constraint which he termed reciprocity. For
Fuller, the rights and duties stipulated by a rule of law became
morally binding when they were understood to apply reciprocally
to both the officials and subjects of the legal system. In this sense,
the constraint of reciprocity established the ultimate ground of
justification for the principles of legal morality in general, and,
more particularly, for the principle that the acts of a legitimate
constitutional government should be congruent with the declared
law of the community.
In the Reply to Critics which he added to the 1969 edition of The
Morality of Law, Fuller argued that the status of reciprocity as a
principle of political legitimacy had not been adequately recognized
in the model of law constructed by the legal positivists. The
positivists, he noted, had constructed their model of law in line
with the classical utilitarian view of the relationship between means
and ends in the analysis of legal order. Accordingly, the positivists
had assumed that law was 'a one-way projection of authority,
emanating from an authorized source and imposing itself on the
Fuller tmd the Defence of N11tu1'11l lAW 51

citizen', with the consequence that they had virtually ignored the
degree to which the moral integrity of a functioning legal system
hinged upon the preservation of an element of 'tacit cooperation
between lawgiver and citizen'.47 As a result, Fuller insisted, the
positivists had tended to conceive the law as a process of m~~nagerial
direction.
Against the positivists, Fuller affirmed that there were important
distinctions between the rule of law and the process of managerial
direction, and that the differences between the two modes of social
organization gave point to the internal relationship which he took to
exist between the procedural morality of law and the purposive
ends of legal order. It ranked as a defining feature of the rule of law,
Fuller argued, that law was so designed as to permit its subjects to
pursue their individual aims, and to enter into mutually binding
voluntary agreements, on condition only that they fulfilled the
general duty to comply with the public rules which articulated
their formally specified legal rights and obligations. Thus under-
stood, the rule of law constituted a system of essentially non-
instrumental rules. This non-instrumental quality of law, Fuller
suggested, was itself fundamental to what he regarded as the basic
justifying purpose of the modern legal system: that of providing
'the citizenry with a sound and stable framework for their interac-
tions with one another', where the role of government was
restricted to one of 'guardian of the integrity of this system'.48
Fuller accepted that the procedures of managerial direction often
involved the promulgation and enforcement of highly complex
systems of rules. Nonetheless, he emphasized that managerial rules
lacked the non-instrumental quality intrinsic to legal rules. Accord-
ing to Fuller, managerial rules were to be understood as executive
directives or instructions, which served to organize the relationship
between their subjects and the managerial authority in the common
pursuit of some collective end or corporate enterprise. Thus,
whereas citizens followed legal rules in the conduct of their private
affairs, the executive directives issued in a managerial context were
essentially 11pplied by subordinates in order to promote an objective
prescribed by a superior. For Fuller, then, there was no reason why
a system of managerial direction should be constrained by the
principles of procedural morality which structured the rule of
law.
Fuller did not dispute that the form of social control exercised
through managerial direction presupposed an adherence on the
52 The Defence of Natural Law

part of the executive superior to certain of the principles of legal


morality. The effectiveness of a system of managerial direction, he
conceded, demanded that executive directives should be neither
mutually contradictory nor subject to constant revision. Even so,
Fuller denied that the executive superior within a managerial
enterprise was bound to issue directives which satisfied the proc-
edural principles of generality and congruence between official
action and declared rule. For instance, it was fully consistent with
the defining purpose of managerial direction that executive direc-
tives could be issued as unsystematic, ad hoc injunctions, and
addressed to designated subordinates without any semblance of
generalized prescription. Likewise, an executive superior was
entitled to depart from the form and substance of previously
announced directives, whenever this made for a more efficient
realization of the common objective or task that constituted the
managerial enterprise in question.
It was in the latter respect that Fuller insisted upon the clear
distinction between managerial direction and the rule of law as
processes of social ordering. In conceiving of law as a form of
managerial direction, he argued, the positivists had recognized
neither that the maintenance of 'a relatively stable reciprocity of
expectations between lawgiver and subject' was an essential
purpose of any functioning rule of law, nor that the achievement
of this purpose demanded that the acts of a lawful government
towards the citizen should be 'legitimated by being brou~ht within
the terms of a previous declaration of general rules'. 9 On the
contrary, it was precisely this procedural constraint of legal
morality which, for Fuller, remained incidental to the defining
purpose of managerial direction as a form of social regulation.
Accordingly, he concluded not only that the managerial conception
of law developed by the positivists misrepresented the nature of the
modern legal system, but also that it called into question the very
principles of political morality which guaranteed the legitimacy of
constitutional government.
The Morality of Law was intended by Fuller to identify and explain
the essential marks and attributes of the rule of law. However, the
book fell short of providing either a comprehensive analysis of the
modern legal order, or a morally compelling vindication of its
legitimacy. This was so largely because of Fuller's neglect of the
relationship between law and the substantive ends of human
morality.
Fuller and the Defence of Natural Law 53

In his review article on the The Morality of Law (1965),50 Hart


claimed that Fuller's arguments for the principles of legal morality
involved a simple conceptual confusion between the idea of morality
and the idea of principles for the guidance of purposive activity.
What Fuller had described, Hart suggested, were procedural
principles, which served merely to enhance the efficiency of law as
a purposive enterprise. In this sense, however, Fuller's principles
neither underwrote, nor answered to, the 'final judgments about
activities and purposes' with which morality was concerned. Not
only were such principles as the requirement of clarity 'neutral' as
between the 'good and evil substantive aims' of the law, but there
existed no essential connection between the inner morality of law
and the substantive ends of 'human justice and welfare'. Indeed,
Hart concluded that Fuller had not even succeeded in establishing
'any necessary incompatibility between government according to
the principles of legality and wicked ends'.51
For his part, Fuller insisted that the morality of law did impose
restrictions of substance upon the ends which could be legitimately
pursued through the process of legal regulation. For example, he
contended that it was an essential feature of the principles of legal
morality that they applied primarily to the creation and enforce-
ment of rules which specified legal duties. Accordingly, he argued
that governmental tasks which involved the allocation of benefits,
as with the public management and distribution of economic
resources, could not be 'effectively performed within the limits set
by the internal morality of law'.52 This followed because, for Fuller,
the minimum principles of legal morality were constitutive of, and
not just instrumental to, the purposive ends of legal order, and were
therefore essential if the rule of law was to make for 'an effective
realization of morality in the actual behavior of human beings'.53
Even so, Fuller did not construct a theory of political morality
which incorporated non-procedural criteria for evaluating the
purposive ends that he regarded as grounding the legitimacy of
the rule of law.
This weakness in The Morality of Law was taken by Finnis as
evidence of Fuller's failure to achieve his stated goal of defending
the natural law standpoint in legal philosophy. Unlike Hart, Finnis
addressed Fuller's work from within the tradition of Thomism.
Thus in Natural lAw and Natural Rights (1980),54 he readily agreed
with Fuller that analysis of the purposive aims of law would
counter the positivists' assertion of an absolute disjunction between
54 The Defence of Natural Law

the description and evaluation of legal phenomena. Nonetheless, he


argued that the proper understanding of these purposive aims
demanded the formulation of a naturalistic theory of morality
which specified the human goods and values actually advanced
through the maintenance of a rule of law. Accordingly, he implied
that, in The Morality of Law, Fuller had failed to unite the description
and evaluation of law in any way which brought the principles of
the internal morality of law into some critically established relation-
ship with a fully ethical conception of human nature and its
essential goods and values.
In contrast to Fuller, Finnis sought to ground the legitimacy of
legal order in its purposive relation to certain permanent require-
ments of the common good, which he believed to express the
substantive principles of natural law. For Finnis, the principles of
natural law represented the final ground of justification for pre-
cisely the procedural principles which Fuller considered essential to
any morally defensible rule of law. These principles both contrib-
uted to the good of personal autonomy- by guaranteeing each legal
subject 'the dignity of self-direction and freedom from certain forms
of manipulation' - and underwrote the integrity of constitutional
government, by promoting 'the positive good of a certain quality of
association and interaction between ruler and ruled' based in
principles of reciprocity and procedural fairness. In these respects,
Finnis followed Fuller in affirming that the preservation of a
relationship of reciprocity under the law ranked as an intrinsic
value of political morality, which was diminished by any attempt to
transform a legal system into an instrument of managerial direction,
or into 'a means to other social ends'. Nevertheless, Finnis con-
cluded that the internal morality of law did not secure 'every aspect
of the common good', or even 'the substance of the common good'.
It was perfectly possible, he contended, for a tyrannical government
to act contrary to the requirements of the common good through 'an
adherence to constitutional and legal forms'. 55 Unlike Fuller, then,
Finnis recognized that the formal principles of legal justice could
not generate an indefeasible moral obligation to obey the law, or
provide sufficient conditions for the ascription of moral authority to
a legal system.
The criticisms by Hart and Finnis brought into sharp focus the
limitations of Fuller's deliberate concentration upon pure~ formal
principles of legal justice. In A Theory of Justice (1971), Rawls
confirmed the view of Hart and Finnis that formal principles of
Fuller and the Defence of Natural Law 55

legal morality neither guaranteed that a rule of law would actually


satisfy non-procedural principles of political morality, nor preven-
ted the pW'Suit by governments of policy objectives which were
iniquitous by some substantive standard of justice.
In A Theory of Justice, Rawls provided a complex analysis of the
concept of justice, which he interpreted as having direct application
to the political and economic institutions that made up the basic
structure of society. Rawls allowed that formal justice, in the sense
of the 'impartial and consistent administration of laws and institu-
tions', was an integral part of the concept of justice.57 Formal justice,
or what he called justice as regublrity, was itself a requirement of the
first principle of justice specified in A Theory of Justice: that is, the
principle which awarded to each subject of justice an equal right to
'the most extensive total system of equal basic liberties compatible
with a similar system of liberty for all'. 58 From this the first of the
two so-called principles of justice as fairness Rawls derived the
concrete principles of justice as regularity - among which he listed
the principles of procedural natural justice governing civil adjudi-
cation, together with all the various principles, like those of
promulgation, non-retroactivity and clarity, that Fuller took to be
core requirements of the internal morality of law.
As much as Fuller, Rawls affirmed that the principles of formal
justice were essential to the purposive aims of the rule of law. These
principles created a general 'framework for social cooperation',
which ensured that the 1egitimate expectations' held by citizens
would actually be met by the legal and political institutions of their
community.59 Even so, the fact remains that the principles of formal
justice did not serve as a sufficient guarantee of substantive justice,
in the sense that they did not exclude the possibility that the basic
structure of a society in which they were honoured might still
embody significant kinds of material injustice. At any rate, there
was no necessary guarantee that a rule of law conforming to the
principles of justice as regularity would not breach the other
institutional requirements of the first principle of justice as fair-
ness, like those enshrining the basic democratic right of equal
participation in the political process and the background constitu-
tional rights of freedom of speech and assembly. Nor, crucially, did
the principles of justice as regularity vouchsafe that the basic social
order of a state constrained by the rule of law would actually fulfil
the egalitarian requirements of political morality defined by Rawls's
second foundational principle of justice as fairness. This principle
56 The Defence of Naturt1l 'Ulw

was so formulated as to exclude any social and economic inequal-


ities which were not to 'the greatest benefit of the least advantaged',
or which were not 'attached to offices and positions open to all
under conditions of fair equality of opportunity'.60 However, in
Rawls's account of the matter, the adherence by a government to
the principles of legal justice did not unconditionally exclude its
toleration of gross material unfairness in the distribution of
economic goods and social opportunities in the community subject
to its jurisdiction.
Rawls's Theory of Justice was an ambitious attempt to combine the
defence of the modern liberal constitution with a redistributive
theory of social justice. Rawls contended that the primary subject of
justice was not the procedural organization of the legal system, but,
rather, the organization of the social and political institutions which
worked to 'distribute fundamental rights and duties and determine
the division of advantages from social cooperation' .61 In conse-
quence, the concept of justice was formulated by Rawls in order
both to vindicate the basic institutional principles of the liberal
constitution, and to specify normative principles of political mor-
ality for determining the fairest distribution of the wealth, privi-
leges and assets of a society as a whole. For Rawls, then, the
legitimacy of the rule of law in a modem state was grounded, not
only in its procedural regularity and in its enforcement of the
particular rights granted under the liberal constitution, but also in
its instrumental contribution to the realization of fairness in the
distribution of the substantive goods and benefits embodied in the
social structure underlying the formal order of law and state.
The Morality of 'Ulw, by contrast, offered a theory of procedural
legal justice, which effectively dissociated the analysis of the rule of
law from any consideration of substantive standards of social
justice. Accordingly, the principles of the inner morality of law
incorporated no critically constructed moral criteria, either for
evaluating the justice of different types of political constitution, or
for assessing the social and economic arrangements that Rawls
identified as the main institutions of distributive justice. In this
respect, however, The Morality of 'Ulw set out a theory of justice
which fell short of many of the declared objectives of Fuller's legal
philosophy.
One abiding aim of Fuller's legal philosophy was to demonstrate
the need for a greater acknowledgement by jurists of the complex
interrelationship between law and society. Throughout much of his
Fuller and the Defence of Natural Law 57

early work, Fuller wrote in explicit opposition to the formalistic


view of law promoted by Langdell and Williston at Harvard. For
example, in 'American Legal Realism',62 a review article published
in 1934, he applauded the efforts of the legal realists to show that
considerations of social morality and public policy were directly
relevant to the procedures of civil adjudication. In doing so, he
stressed that the realists had erred in postulating a wholly determi-
nistic relationship between society and the law - an error which he
believed had led them to underestimate the creative role played by
legal rules and institutions in the basic processes of social and
economic organization. For his part, Fuller insisted that law and
society stood in a relationship of purposive interaction - a position
defended with immense explanatory power in the influential
articles on the law of contract which he wrote in the 1930s and
1940s: 'The Reliance Interest in Contract Damages' (1936-7); 63
'Williston on Contracts' (1939);64 'Consideration and Form'
(1941). 65 In these articles, Fuller emphasized that the principles
governing the law of contract were the outcome not only of the
economic forces at work in the market, but also of policies
consciously formulated and implemented by the courts.
Nevertheless, by reason of its narrow concern with formal
principles of legal justice, the argument of The Morality of Law
implied precisely the dualism between the law and the social and
economic order of a community which Fuller had earlier been
committed to rejecting. After The Morality of Law, Fuller moved
back to exploring the interrelationship of law and society. In
particular, he tried to explain the senses in which the underlying
principles of legal morality had come to be established through the
practice of the courts.

iii. THE COMMON LAW TRADIDON AND THE POLIDCAL


MORALITY OF LIDERAUSM

In The Morality of Law, Fuller identified the foundations of political


legitimacy with the principles of procedural legal morality. For
Fuller, these principles worked to ensure that all legally specified
rights and duties would be reciprocally enforceable against both the
officials and subjects of a legal system. In doing so, the principles of
legal morality helped encourage the tacit public expectations that
the exercise by government of its official powers would be limited
58 The Defence of Natural Law

by the rule of law - a requirement which Fuller held to be the basis


of legitimate constitutional government.
In the major article 'Human Interaction and the Law' (1969),66
Fuller suggested that the implicit public confidences essential to the
integrity of constitutional government were nurtured by the same
processes of social ordering which had generated the law of custom
in pre-modem societies. This was so because the law of custom
imposed a form of legal relationship whose generation had
depended upon there developing among its subjects what Fuller
called a stabilization of interactional expectancies - a process of legal
ordering that he believed to be analogous to the one which
cemented the relationship between the citizen and a government
faithful to the internal morality of law. However, 'Human Interac-
tion and the Law' did not make the historical claims on behalf of the
tradition of common law which Fuller advanced in Anatomy of the
Law. Like The Law in Quest of Itself, Anatomy of the Law was a review
of the different forms and sources of law, which emphasized the
permanent relevance for contemporary jurisprudence of the conflict
between the rival traditions of natural law and legal positivism. In
Anatomy of the Law, though, Fuller explored the divergences
between these traditions in terms of the tension within the modem
legal system between the elements of made or explicit law, which
predominated in the law created through contract and statutory
legislation, and the implicit law of custom.
Although conceding that custom was not a pure type of implicit
law, Fuller maintained that investigation of the formal properties of
the law of custom would check the tendency of jurists after Austin
to construe the whole of law on the model of statutory legislation. In
doing so, he insisted that the law of custom comprehended legal
norms which possessed a status distinct from that of the rules
contained in the explicit law laid down in written constitutions and
formal systems of statutory legislation. These norms included
certain implicit principles of legal decency, which, like the princi-
ple excluding the retrospective criminal statute, were presupposed
by any system of statutory legislation. Such principles of legal
decency derived their normative authority, not from some decisive
act of legislative enactment or from their inclusion in the explicit
provisions of a written constitution, but, rather, from 'the attitudes
and practices of the community'.67 The principles of legal decency
and orderly government embodied in the customary practices of the
community also provided a foundation for the law established by
Fuller and the Defence of Natural Law 59

the courts through the adjudication of cases. It was in these terms


that Fuller distinguished the case law developed within common
law jurisdictions from the type of law created through formal
procedures of statutory legislation.
Fuller recognized the limitations of the common law as a form of
legal regulation. A system of adjudicative law, he argued, could
acquire legitimacy only in socially cohesive communities that
enjoyed a broad political consensus about the standards of public
morality to which their courts appealed in the decision of con-
troversial cases. For this reason, the methods of adjudication
characteristic of the common law tradition were inappropriate to
societies which remained deeply divided on fundamental 'issues
affecting law, government, and economic organization', or which
were in the process of undergoing 'rapid and disruptive change'
like forced industrialization.68
Fuller also acknowledged that the procedures of adjudication
adopted by the common law courts often involved the retrospec-
tively effective declaration of legal rights and duties. An element of
retrospective law-making was always present whenever the courts
were forced to decide controversial cases by drawing out the
implications of existing precedents, or by making an authoritative
interpretation of the meaning of statutes enacted by legislative
institutions. He also emphasized that the common law courts had
often moved to overturn established precedents, or even to extend
legal regulation into areas not previously thought subject to law.
However, Fuller denied that the retrospective dimension of civil
adjudication involved a transgression by the courts of any of the
principles of the internal morality of law. For example, he argued
that the extreme reluctance of the common law courts to disregard
precedent had evidenced a deep-rooted judicial disinclination to
'impose the hardships ... [resulting] from retrospective changes in
the law' -a disinclination which he took to have complemented the
preparedness of the common law courts to rely on legislative
institutions to initiate and bring about radical changes in the
content of existing law. Accordingly, Fuller attached great impor-
tance to the fact that the reform of the criminal law in common law
jurisdictions had come to be entrusted to the legislative branch of
government, thereby relieving the courts of any power to create
new criminal penalties through the process of adjudication. In this
way, the institutional framework for common law adjudication had
satisfied the overriding requirement of legal certainty which
60 The Defence of Natural Law

demanded that the aiminallaw should be organized so as to afford


the citizen every opportunity to know, in advance, what he was and
was not permitted to do. Moreover, Fuller stressed that the common
law had developed in societies where there existed no 'deep-cutting
discrepancy between legal standards and general notions of what
[was] fitting and just', and where the retrospective alteration of the
law by the courts had often served to bring 'legal rules into line
with general opinion' .69
For Fuller, the retrospective quality of civil adjudication under-
scored the fundamental differences between the law developed by
the courts and the legal norms created through procedures of
statutory legislation. While the statute law consisted of general
rules that were issued in anticipation of the cases to which they
had application, the legal rules formulated by the courts emerged
from the process of adjudication itself. Again, whereas statutory
enactments were expressed in the imperative mood, judge-made
law was characteristically grounded in principle and accompanied by
argumentative or justificatory statements. It was thus an essential
feature of common law adjudication, Fuller argued, that the legal
rules enforced by the courts in specific disputes and the reasons
adduced in their support were regarded as being intimately
connected aspects of a single process of judicial deliberation.
The formal distinctions between judge-made law and statutory
legislation were taken by Fuller to belie the particular concept of a
legal system which he found running through the work of the
positivist jurists. Tite positivists, he contended, had understood the
rule of law as comprising an ordered arrangement of legal rules,
which stood to one another in a relationship of systematic unity by
reason of their common origins in the law-making acts of certain
authorized political institutions. However, Fuller pointed out that
the common law courts had frequently been called upon to settle
disputes for which no legal rule or judicial precedent existed. With
these cases, the courts had been compelled to base their decisions
upon some interpretation of the principles of justice and legal
morality which informed the various rules and precedents that
made up the whole body of existing law. The legal rules deter-
mined by the courts, then, were not systematically related by virtue
of their origins in the law-making acts of any political institution.
On the contrary, the systematic interrelationship of the rules
determined by the courts was grounded in their judicial derivation
from underlying principles of law - where these principles were
Fuller and the Defence of Natural Law 61

ascribed an authority by the courts which transcended the condi-


tions of their specific application to individual cases. It was this
procedural impetus towards systematization in the common law,
Fuller insisted, that had constrained the courts to pursue principled
consistency in the adjudication of different cases, in accordance
with the fundamental rule of legal justice which required 'the like
decision of like cases'.70
Fuller did not commend study of the common law merely as an
instructive corrective to the conceptual claims about law associated
with the modem positivist tradition in jurisprudence of Bentham
and Austin. Fuller also regarded the common law as a tradition of
legal thought and practice which had honoured the procedural
principles of legal morality that underwrote the normative author-
ity of the rule of law, and which had promoted the institution of
independent courts that grounded the integrity of constitutional
government. What remained obscure in this, however, was the
precise theoretical status which Fuller assigned to the relationship
between the tradition of common law and the principles of legal
morality considered in their character as principles of natural law.
In his analysis of the common law, Fuller looked back to the pre-
Benthamite tradition of reflection upon the nature of the common
law which culminated in the publication of Blackstone's Commen-
taries on the Laws of England. In the Commentaries, Blackstone
followed theorists like Grotius and Locke in assuming the existence
of certain universal laws of nature, which, in his case, he believed to
constitute the ultimate moral foundation of the complex system of
individual rights and liberties that he took to be embodied in the
English common law. At the same time, though, Blackstone
conceived the English common law as an essentially historical
artifact, in the sense that he saw it as being made up of the rules
of custom which, from the Anglo-Saxon period onwards, the courts
had declared to have the force of law in the decision of cases
submitted for adjudication. Nevertheless, Blackstone did not iden-
tify the common law exclusively with the body of judicial pre-
cedents actually set by the courts in the decision of past cases. On
the contrary, he recognized a fundamental distinction between the
common law itself and the historical sum of the received opinions
of particular judges about its meaning and character. In drawing
this distinction, Blackstone was led to deny that the common law
consisted merely of the existing body of judicial precedents. On
Blackstone's account, the common law also included certain
62 The Defence of Natural Law

foundational rules and maxims - like the maxim that no accused


person should be required to accuse himself in open court - which
summarized general principles of justice and legal policy, whose
normative force depended upon their direct appeal to human
reason. It was because of the existence of these general principles
that, for Blackstone, the English courts had been able to decide cases
not covered by received precedents, without thereby undermining
the systematic unity of the common law.
In his great work on the English common law, Blackstone gave
classic expression to the naturalistic view of law and adjudication.
This was so in the respect that he held that the legal rules and
precedents determined by the courts in the adjudication of cases
had emerged, not through a process of judicial legislation or
invention, but, rather, through a process of judicial reasoning, or
judicial deliberation, which aimed at the discovery or recognition of
what was assumed by the courts to be an independently existing
body of law. In Anatomy of the Law, Fuller adhered closely to the
philosophical presuppositions of legal naturalism in his examina-
tion of the practice of the common law courts. Hence, he insisted
that the rights and duties determined in particular disputes had
generally been treated by the courts as involving the judicial
discovery and application of 'a law already implicit in previous
law or in the nature of human society'.71
However, Fuller also sought to restate the classic naturalistic view
of civil adjudication, by showing how the procedures of judicial
interpretation adopted by the common law courts were consonant
with what he regarded as the essentially purposive character of legal
phenomena. For Fuller, the rights and duties enforced by the courts
in the context of specific cases were determined through procedures
of disciplined judicial deliberation about the meaning of the
principles of legal and political morality embodied in the customary
practice of the community as a whole - where these principles were
taken to represent the underlying purposes which gave point and
justification to the explicit law of the community. In this way, the
procedures of adjudication in the common law ran counter to the
assumption by the legal positivists of a final metaphysical disconti-
nuity between the description and evaluation of law, as well as to
their assumption of an absolute discontinuity between the law of a
community and its standards of social morality. However, although
the logic of common law adjudication tended to tell against any
positivistic dualism between law and morality, Fuller's analysis of
Fuller and the Defence of Natural lAw 63

the common law tradition did not in fact succeed in reintegrating


the concerns of jurisprudence with those of ethics and political
philosophy. In this crucial respect, Anatomy of the lAw failed to
realize the potential of the natural law tradition in legal theory as
Fuller had outlined it in The lAw in Quest of Itself.
In its defence of the common law tradition, Fuller's work closely
paralleled the legal theories expounded by Hayek and Dworkin.
Unlike Hayek and Dworkin, however, Fuller did not examine the
principles guiding common law adjudication in terms of a fully
normative philosophy of political morality. Hayek associated these
principles of adjudication with the system of rights to private
property and freedom of contract which he considered integral to
the structure of the modem free market economy. Dworkin
described the principles underpinning the Anglo-Saxon tradition
of civil adjudication in their relation to a fundamental right to equal
concern and respect - a right which he believed to represent
the best moral justification for the progressive welfare policies
demanded by the terms of the Rawlsian theory of justice as
fairness. For his part, Fuller claimed only that courts should
adjudicate by reference to the principles of law and political
morality followed within the larger community. As a result, he
did not articulate any genuinely evaluative criteria, either for
differentiating between the rival principles of political morality
actually subscribed to within particular communities, or for asses-
sing the legitimacy of the legal arrangements of an individual
community taken as a whole. Indeed, the analysis of the common
law tradition offered in Anatomy of the lAw evidenced the degree to
which Fuller's project in jurisprudence was based in a form of
historical relativism that remained radically subversive of the
universalist aspirations characteristic of the pre-modem tradition
in natural law philosophy.
On occasion, Fuller argued that the abandonment of the meta-
physical dogmatisms running through the pre-modem tradition of
natural law philosophy did not prevent the construction of an
objective critical perspective, from which the legitimacy of different
historical forms of legal organization could be assessed by appeal to
universally valid principles of political morality. In Anatomy of the
lAw, for instance, Fuller maintained that the essential claim of
natural law philosophy consisted in 'an affirmation of the role of
human reason in the design and operation of legal institutions'. To
this extent, he implied that the methodologies formulated by the
64 The Defence of Natural Law

classic natural law jurists did succeed in identifying certain perma-


nent principles of legal and social order which were objectively given,
in the sense that these principles were not simply an index of
'personal predilection or inherited tradition', but also discoverable
as 'matters of perception and understanding' .72
In setting out the aims of his proposed new science of eunomics,
Fuller recognized that analysis of the permanent principles of legal
order pointed towards the possibility of a jurisprudence which
incorporated universally conceived criteria of moral evaluation. In
'American Legal Philosophy at Mid-Century', for example, he
rejected the viewpoint set in Kantian ethics by appealing to the
viewpoint, central to the tradition of Plato and Aristotle, in which
the objective validity of moral and other evaluative judgments had
been taken to depend upon their relation to a concept of 'man's
nature as it would be if it were able to resolve its disharmonies and
to surmount its imperfections'.73 Even so, Fuller did not go on to
expound a fully ethical theory of human nature and its internal
goods and values to serve as a justification for the normative
authority of the procedural principles that he considered to
structure the formal organization of the modem rule of law. On
the contrary, Fuller was emphatic that the success of eunomics did
not hinge decisively upon the specification of any controlling ethical
conception of the '"ultimate ends"' of moral and political activity?4
In consequence, the science of eunomics did little more than assume
- without adequately vindicating - the legitimacy of the constitu-
tional arrangements of the modem state, as these had been nurtured
by the tradition of secular liberalism that emerged in the aftermath
of the collapse of the consensus on foundational questions of moral
and metaphysical philosophy which had underpinned the great
classical and medieval systems of natural law.
Ultimately, then, Fuller fell short of constructing an ethical theory
that specified the final moral goods and values essential to human
nature. At the same time, though, Fuller did write in the conviction
that the procedural morality of law embodied universal principles
of natural justice, and that the integrity of these principles was
jeopardized by the utilitarian view of political society promoted by
the mainstream exponents of legal positivism. In both respects,
Fuller sought to establish natural law principles in legal philosophy
in accordance with the core moral-political values of the same
tradition of secular liberal constitutionalism with which Oakeshott
and Hayek were aligned.
Fuller and the Defence of Natural LAw 65

In contrast to Oakeshott and Hayek, Fuller denied that the


modern growth in institutions of representative democracy had
undermined the integrity of the rule of law as a form of political
organization. Fuller was not uncritical of the majoritarian basis of
modern democratic politics. In The LAw in Quest of Itself, for instance,
he argued that the totalitarian regimes which emerged in Germany
and Spain during the 1930s were to be understood as having
resulted from the mistaken belief that existing power relations
within society could be replaced with a legitimacy based on 'the
mere will of a numerical majority'. 75 Subsequently, Fuller was to
express the view - shared by Oakeshott and Hayek - that the moral
force inherent in democratic governments always presupposed
their conformity to the formal rules of procedure imposed by a
constitution. Thus, in The Problems of Jurisprudence, he insisted that
this constitutional procedure could not itself be 'conditioned upon
majority will', since it in fact laid down 'the legally effective method
for determining majority will'.16 Yet Fuller concluded, whereas
Oakeshott and Hayek did not, that the development of institutions
like freedom of contract and the independent judiciary had actually
required 'the existence of a democratically legitimated governmen-
tal power',77 and that, in the contemporary world, the democratic
system offered the only 'principle of legitimation that [had] any
substantial prospect of securing general acceptance among civilized
peoples'. 78 Nothing which Fuller wrote after The Problems of
Jurisprudence implied that the return to the natural law viewpoint
in legal philosophy demanded a rejection of the legitimacy claimed
by modern democratic institutions, or the adoption of non-major-
itarian principles of political morality.
In The Morality of LAw, Fuller assumed much the same sort of
distinction asserted by Oakeshott and Hayek between the principles
of constitutional rule and the managerial techniques of public
administration associated with the modern dirigiste economy and
the modern welfare state. However, Fuller did not convey the same
deep-rooted moral aversion to modern forms of collectivism that
tended - ideologically at least - to align Oakeshott and Hayek with
the more doctrinaire anti-totalitarianism of Popper, Berlin and
Talman. On the contrary, in the review article 'Pashukanis and
Vyshinsky' (1949), 79 Fuller expressly warned against the penchant
of the postwar American foreign policy establishment for interpret-
ing the motives and future conduct of Soviet Russia in terms of the
rigid categories of classical Marxism-Leninism; while in the later
66 The Defence of Natural Law
review article 'Irrigation and Tyranny' (1965),80 he emphasized that
the problems of economic planning that faced the developing
nations and the communist bloc were no different in kind from
those confronting the capitalist liberal democracies of the West.
On the other hand, in some of his writings from the 1950s and
1960s, Fuller tried to defend the political economy of the free market
in something like Hayekian terms. In 'Freedom - A Suggested
Analysis', for instance, he contrasted forms of social organization
constituted for common ends, such as the family and commercial
corporations, with organizations, like the modem free market
economy, which were governed by the principle of reciprocity.
Explicitly citing Hayek, he acknowledged that the constitution of
the liberal state had enshrined this principle of economic reciprocity
through its limiting the permissible activities of government to
those necessary to secure the minimal ends of 'common defense,
prevention of fraud and violence, protection of property, [and]
enforcement of contracts'.81 In this way, Fuller made it dear that
the free market system was structured by the same organizational
principle which he later identified with the rule of law in The
Morality of Law. Even so, he certainly did not question the morality
of all the statist enterprises of modem governments. In fact, in
'Freedom - A Suggested Analysis', he suggested that the problem of
medical care would probably be better solved through forms of
social organization based on the principle of common ends, rather
than on the model of the free market. In any event, it remains highly
doubtful whether The Morality of Law offered any conclusive
arguments of political morality for ascribing a special legitimacy
to the free market system in the sense implied in the earlier article.
In their different ways, Hart, Finnis and Rawls showed that the
sort of principles of legal morality focused on by Fuller embodied
no determinate criteria for evaluating the substantive justice of the
particular ends and policies pursued under different legal systems.
The bare conformity of a governmental authority to the principles of
legal morality, these critics implied, was consistent both with its
flagrant violation of important civil rights, like the right of demo-
cratic participation in the constitutional process, and with its
institutionalized toleration of indefensible inequalities in the dis-
tribution of economic goods and social advantages. Fuller himself
hotly disputed the claim that the principles of legal morality
imposed no retrictions upon the substantive ends which could be
legitimately pursued by a government acting through the rule of
Fuller and the Defence of Natural lAw 67

law. As he argued in The Morality of lAw, certain tasks of economic


management and allocation virtually compelled governments to
contravene the procedural principles of legal order. Nevertheless,
Fuller established no internally guaranteed relationship between
these principles and any independently conceived standards of
non-procedural justice. Indeed, if interpreted in strictly formal
terms, Fuller's principles of legal morality sufficed neither to confer
a special normative status upon the individual rights to private
property and economic choice which Hayek associated with the free
market, nor to preclude the implementation by a government of
legislative policies in matters of economic management and welfare
provision which gave concrete effect to the egalitarian rights central
to the Rawlsian theory of distributive justice.
This does not mean that The Morality of lAw was anything other
than an attempt to defend the core values of the tradition of liberal
constitutionalism- only that the nature of Fuller's allegiance to the
political morality of liberalism should not be understood primarily
in terms of the ideological conflict over the drift towards statism in
the West in which Hayek, Rawls and Oakeshott were actively
engaged. Indeed, in 1948, in the Introduction to an anthology of
extracts from the work of theorists belonging to the German school
of the jurisprudence of interests,82 Fuller maintained that disagree-
ments among jurists concerning law and legal method were to be
explained, not in terms of a straightforward opposition between
orthodox conservative and radical views on economic and political
questions, but, rather, in terms of divergent conceptions of the
nature of government and the judicial office, and even in terms of
'epistemological differences about the respective roles of reason and
intuition in the ordering of human affairs', which ultimately
transcended 'the accustomed lines . . . running to the left or the
right'. 83
In outlining the agenda for the new science of eunomics, Fuller
claimed that many of the ruling moral, political and metaphysical
assumptions integral to the philosophy of liberalism had served
only to distort and misrepresent the essential nature of law and
political society. Thus in 'Irrigation and Tyranny', he emphasized
that the neglect of the institutional morality of law in positivist
jurisprudence evidenced the predominance in modem ethics of
such doctrines as 'utilitarianism, non-cognitive and emotive theor-
ies of moral preference, and Kant's solitary ethical soliloquizer,
impartially legislating for all mankind'.84 Yet while dissociating
68 The Defence of Natural Law

himself from these schools of moral and political theory, Fuller did
not seek to return to classical Aristotelianism as a foundation for the
reconstruction of the natural law viewpoint in ethics and legal
philosophy. Of course, Fuller nowhere questioned the abiding
relevance of Aristotelianism for contemporary jurisprudence. In
his contribution of 1965 to the entry 'Jurisprudence' in the Encyclo-
paedia Britannica,85 he implied that the outstanding problem in
modem jurisprudence remained the recovery of the sort of relation-
ship between law and morality which had been taken for granted
by Plato and Aristotle. However, Fuller made clear that, while the
Platonic-Aristotelian concept of law 'embraced almost indifferently
enacted rule and established custom', post-classical legal philoso-
phy had been compelled to retrace the connection between law and
morality in accordance with the modernistic distinction between
'generally recognized principles of fiJht conduct ... and legal rules
formally promulgated by the state'.
At no stage in his work did Fuller claim that the defence of
natural law in modem legal philosophy depended upon a reversion
to the Aristotelian conception of the proper relationship between
law and morality. To be sure, he did firmly reject the absolutism of
the dichotomy assumed by the positivist jurists between the rule of
law of a society and the norms of conventional morality embodied
in its customary practices and traditions. Again, in the notable
article 'Positivism and Fidelity to Law' (1958),87 he complained
that a failure to recognize the moral quality of the principles
governing legal procedure had forced even a revisionist positivist
like Hart to continue to assert a basic disjunction between the
obligation of fidelity to law and 'the ordinary, extra-legal ends of
human life' .88
Nonetheless, Fuller denied that the procedural principles of
natural law licensed the state to enforce social morality by attach-
ing a coercive legal sanction to its constituent rules and norms. Thus
in the article 'Two Principles of Human Association' (1969),89 Fuller
explicitly warned against the process of creeping legalism by which,
he argued, the modem state had sought to extend the domain of
law over associations, like the family or the church, whose members
were characteristically united in a shllred commitment to some
dominant end or purpose, or to some uniform set of moral values
and beliefs. Indeed, in issuing this warning, Fuller was led to insist
that the modem political state was organized by an essentially legal
principle of human association, which, ultimately, presupposed a
Fuller and the Defence of Natural Law 69

shared commitment on the part of its subjects to no publicly defined


values more morally substantial than those necessary to preserve
the formal integrity of the rule of law itself.
The theorists considered in Chapters 3 to 5 were united with
Fuller in upholding the cause of natural law philosophy in two
fundamental respects. FJJ'St, they rejected the dissociation effected
by the legal positivists of the analytical study of law from the
normative concerns of moral and political philosophy. Second, they
insisted that utilitarianism failed to provide a morally satisfying
normative justification for the authority ascribed to the rule of law
in a modem state. Nevertheless, the theorists offered different
formulations of the essential reality of natural law, from which
they went on to derive markedly divergent, and highly controver-
sial, conclusions about central questions of political morality.
Oakeshott regarded the procedural morality of law as the
ultimate source of political legitimacy in the modem state. How-
ever, he also adhered to the tradition of natural right of Hobbes and
Spinoza, and, in doing so, defended a voluntarist theory of political
obligation which was metaphysically continuous with the general
theory of law developed by the mainstream legal positivists from
Austin to Hart. Hayek associated the internal morality of the rule of
law with the schedule of individual rights essential to the formal
organization of the free market economy. For Dworkin, the cause of
legal naturalism in jurisprudence was inseparable from the vindica-
tion of the egalitarian principles of political morality defended in
Rawls's theory of social justice. Finnis wrote from within the
tradition of Thomism. In consequence, his reformulation of the
philosophy of natural law transcended much of the ideological
gulf which separated Oakeshott and Hayek from Dworkin.
It remains unclear whether the differences between these theor-
ists reflected underlying disagreements about the reality of natural
law, or merely rival interpretations of the political morality of
liberalism. Apart possibly from Finnis, none of the theorists
advocated political arrangements remotely capable of re-embody-
ing the classical concept of law in the conditions of a modem
Western society. On the contrary, each endorsed precisely the
constitutional order of the modem European state for which the
various doctrines of legal positivism from Austin to Hart had been
designed to provide a normative justification. Even when this
acceptance of modernity was in doubt - as it was in the cases of
Oakeshott and Finnis - none of the theorists explained how
70 The Defence of Natural Law

contemporary forms of legal, economic and political organization


could be thrown over in favour of other, more morally defensible
forms of human association. What does remain beyond question is
that, with the exception of Fmnis, the theorists followed Fuller in
prescribing principles of natural law in broad acceptance of the
moral and political ideals integral to the post-classical tradition of
liberalism.
3
Michael Oakeshott and
F. A. Hayek: Natural Law
and the Philosophy of
Liberal Conservatism

It is not obvious why Oakeshott should be considered as a defender


of the natural law tradition in legal and political philosophy. In On
Human Conduct (1975),1 Hobbes on Civil Association (1975) 2 and On
History (1983),3 Oakeshott provided a complex theoretical analysis
of the modem rule of law, in which he examined the constitutional
order of the European state in terms of the principles of political
morality central to the Hobbesian tradition of natural right. In doing
so, he rejected the governing ethical and metaphysical assumptions
of the great natural law tradition of Plato, Aristotle and Aquinas.
Likewise, in his critique of the mentalities of European rationalism,
which culminated in the publication in 1962 of the collection of
essays Rationalism in Politics,4 Oakeshott called into question the
very possibility of the sort of pursuit of universally valid principles
of political morality that had characterized the work of the classical
and medieval philosophers of natural law.
Nevertheless, Oakeshott identified the basic principles of consti-
tutional government with the procedural morality that organized
the formal administration of the modem legal system. In common
with Fuller, Oakeshott maintained that the procedural principles of
legal morality embodied an internal relationship between law and
justice - a relationship which, on his account of it, significantly
qualified the standard utilitarian justification of the authority of the
rule of law adopted by jurists belonging to the school of legal
positivism. Like Hayek, Oakeshott insisted that the idea of the
procedural justice of law was intimately connected with the
political morality of liberal conservatism. Far more than Fuller,
then, he asserted an essential antagonism between the procedural

71
72 The Defence of Natural Law

morality of the rule of law and the collectivist engagements of


modem European governments. However, Oakeshott's defence of
the procedural principles of natural law, together with his attempt
to uphold the values of liberal conservatism, remained fatally
compromised, chiefly because of his adherence to the voluntarist
interpretation of legal phenomena underlying Hobbes's civil philo-
sophy - an interpretation of legal reality which Fuller and Hayek
recognized to inform the positivist theory of law developed by
Bentham and Austin.

i. OAKESHOTI, HOBBES AND CIVIL ASSOCIATION

Oakeshott ranks with T. H. Green (1836-82), F. H. Bradley (1846-


1924) and R.G. Collingwood (1889-1943) as a leading member of
the school of philosophical idealism which flourished in Britain
during the late nineteenth and early twentieth centuries. Bradley
exerted a powerful influence on Oakeshott's early writings, parti-
cularly Experience and its Modes, 5 a systematic work on metaphysics
which was highly commended by Collingwood after its publication
in 1933. In Experience and its Modes, Oakeshott sought to delineate
the modal presuppositions of science, history and practice as
discrete forms, or modes, of human experience. Although he
addressed morality and religion as forms of practical experience,
Oakeshott did not in fact examine the mode of practice in its
relation to the activity of politics. However, in 'The Authority of
the State',6 a Modern Churchman article published in 1929, he
proposed a fully Hegelian definition of the state, and one which
departed markedly from the individualistic theories of political
society formulated by the great philosophers of the social contract
and their utilitarian successors.
In the Philosophy of Right, Hegel explicitly rejected the idea of the
social contract as a basis for the explanation of the nature of political
obligation. Philosophers such as Hobbes and Locke had assumed
that the legitimacy of civil government was rooted in the consent of
its subjects. Hegel, by contrast, argued that the legitimacy attaching
to the governmental institutions of the state was grounded in
principles of political morality immanent in the pre-legal norms,
customs and practices which comprised what he called civil society.
Theorists like Hobbes and Locke had conceived political society to
The Philosophy of Liberal Conseroatism 73

be a formally constituted association of individuals, who were


bound together through a voluntary agreement analogous to that
of a legal contract. For Hegel, however, civil society was made up of
forms of human association, like the family and the household,
which were essentially non-contractual in nature, and which, in
consequence, generated principles of legitimacy and obligation that
were binding irrespective of the consent or voluntary agreement of
their members. Hegel insisted that such forms of association were
metaphysically prior to the individual, in the sense that, for Hegel,
the family, the household and the other institutions constitutive of
civil society could not properly be understood as instrumental
associations - that is, as associations which existed merely to
promote the realization of the private aims and objectives of their
members. This was why Hegel characterized the state as an ethical
community, or more precisely as a form of Sittlichkeit, which
embodied moral goods and values that were internal to its formal
system of rules, laws and institutional procedures.
Hegel's communitarian view of political association was taken up
and restated by Green in the posthumously published Prolegomena
to Ethics (1883f and Lectures on the Principles of Political Obligation
(1886),8 as well as by Bradley in his Ethical Studies (1876). 9 In 'The
Authority of the State', Oakeshott followed Green and Bradley in
acknowledging no absolute distinction between the legal and
constitutional arrangements of the state and the cultural, economic
and religious practices which made up the sphere of civil society. It
was a mistake, he contended, to conceive the state as merely 'a
collection of persons', whether organized for legal, economic or
political purposes, or to conceive the state as merely a physical
territory subject to the jurisdiction of a particular system of law and
civil administration. The authority exercised by the formal institu-
tions of state government, he insisted, always presupposed the
context provided by the social whole - that is, 'the totality in an
actual community which satisfies the whole mind of the individuals
who comprise it'. 10 Accordingly, he denied that the authority of the
state could arise from the voluntary consent or promissory agree-
ment of its subjects. On the contrary, the authority of the state lay
'solely in the completeness of the satisfaction which the state itself
affords to the needs of concrete persons'. 11
This early application of the procedures of metaphysical idealism
to the concerns of political science was not of lasting significance in
the evolution of Oakeshott's philosophy of law and government. Of
74 The Defence of Natural Law

overriding importance, though, were the Introduction which Oake-


shott wrote for his 1946 Blackwell edition of Hobbes's Leviathan,U
and an essay written in 1960 on Hobbes's theory of civil obligation:
'The Moral Life in the Writings of Thomas Hobbes' .13 In these
notable contributions to Hobbes scholarship, Oakeshott demonstra-
ted the full measure of his commitment to the individualistic
conception of political order running through the philosophical
tradition of the social contract that Hegel and his Anglo-Saxon
heirs rejected.
In the Introduction to Leviathan, Oakeshott reconstructed the main
elements of Hobbes's political, or civil, philosophy. For Oakeshott,
Hobbes had been decisive in breaking with the great rational-natural
tradition in political philosophy, which stretched back through the
classic exposition of the principles of natural law by Aquinas to its
origins in the thought of Plato and Aristotle. Oakeshott's distinction
between the rational-natural and the modern, or post-Hobbesian,
traditions in political philosophy is of cardinal importance, both for
the understanding of the character ascribed to a modern state in the
history of ideas, and for the understanding of Oakeshott's own
theory of law and government.
The rational-natural tradition in political philosophy owed much
of its inspiration to the assertion by Plato of a fundamental contrast
between the actual political arrangements of different societies - a
matter to be settled by human convention - and an ideal of justice
which was based in human nature as such. In developing this
contrast, Plato established that the idea of justice was a normative
concept, which could function as a universal criterion for the critical
evaluation of the conventional political arrangements of any
existing human community. In this way, Plato implied the primacy
of the ethical standpoint within political philosophy- a view of the
proper procedure in political science which was to guide later
reflection upon the principles of natural law. Plato also regarded
the concept of justice as defining a certain virtue, or moral
excellence, of the human person. For Plato, this excellence of
character consisted in the proper ordering of the various virtues,
like wisdom, courage and temperance, whose exercise conduced to
the full moral realization of the rational nature of the human agent.
The idea of justice as a disciplined ordering of the different human
virtues provided Plato with a foundation for the specification of an
ideal political state, in which the virtuous citizen was enabled to
perfect his rational nature, and, hence, to move towards the
The Philosophy of Liberal Conservatism 75

attainment of his highest moral good. Plato thus established the


idea of perfection as a normative concept in moral and political
philosophy. In doing so, he also established the idea that the
justification for the authority exercised by the state should be
grounded in a fully ethical conception of human nature and of
the moral ends integral to its perfection.
Aristotle followed Plato in adopting a principle of perfection as a
basis for the justification of the authority of the state. Indeed, a
perfectionist view of morality, and of the relationship between
morality and the political realm, was implicit in the teleological
conception of the natural universe which underlay Aristotle's entire
philosophical system. Under this teleological conception of nature,
all existing phenomena were to be classified and explained in terms
of their relation to the ultimate ends and purposes which defined
the perfection of their essential reality. As part of the universal
order, human nature was considered by Aristotle to have its own
inherent, and rationally discernible, ends and purposes, which, for
him, constituted the ethical ideal of the ultimate human good. This
was why, in the Nicomachean Ethics, he argued that the moral and
intellectual virtues were to be described and explained in terms of
their contribution, as excellences of personal character, to the
complete fulfilment by the individual agent of his rational human
nature.
Aristotle believed that the human agent could fulfil his rational
nature only through the possession and exercise of those public
virtues of citizenship which qualified him for active participation in
the political realm of the state, or polis. Hence in the Politics,
Aristotle claimed that the state was a self-complete form of human
association, in the sense that the laws and constitution of a state
existed to serve no end or purpose external to itself. In taking up
this teleological view of political association, however, he was
unable to recognize that the authority of the state could be
generated by - or be conditional on - the consent of its subjects,
either individually or collectively. In fact, Aristotle, like Hegel after
him, upheld an organic conception of political society, in which the
state was understood to embody goods and values that remained
metaphysically prior to the private aims and objectives of its
individual members.
During the thirteenth century, Aquinas attempted to reconcile the
main elements of the Aristotelian philosophy with the core articles
of the Christian faith. In doing so, he provided what is still taken to
76 The Defence of Natural Law

be the orthodox statement of natural law as a normative theory of


political morality. Aquinas affirmed the Aristotelian view of the
state as a perfect community. However, he differed from Plato and
Aristotle in his concern to explain the essentially law-governed
character of political society. To this end, he distinguished four
types of law: eternal law, natural law, divine law and human law. The
eternal law described the whole of God's providential conception of
the ultimate destiny of the created universe. The natural law, or lex
naturalis, comprised that part of the eternal law which was
transparent to the natural reason of human beings in their worldly
situation. In this sense, the natural law was made up of normative
principles of morality which all rational agents were capable of
understanding, merely by virtue of their ordinary human nature.
The divine law was a form of positive law, which summarized
those of God's commandments that were expressly revealed in the
Scriptures. The human law, or lex humana, was that form of positive
law which comprised the legal rules and conventions constructed
by human beings for the furtherance of the common good in
society, and for the just ordering of their political institutions.
Aquinas held that the construction and just administration of a
system of positive law in society were requirements of political
morality grounded in the natural law- with the consequence that
he assumed that the citizen was subject to a prima facie moral
obligation to comply with the rule of law. In contrast with later
theorists, then, Aquinas did not assume that positive law was an
exclusive, or a self-sufficient, source of authentic legal obligation
within a political community. Still less did he believe that positive
law possessed validity merely because it was the command of an
authorized civil ruler. In fact, he argued that human positive law
was, ideally, the expression of certain detenninations of the princi-
ples of natural law in their relation to the different historical
conditions of particular societies. For Aquinas, it was always
possible for the positive law to be determined by a civil ruler
through a reasoned interpretation of the meaning of natural law
in its application to the specific circumstances of his own commu-
nity. Accordingly, he insisted that the validity, or justice, of positive
law derived ultimately from its conformity to, or lack of significant
deviation from, the principles of natural law grasped by human
reason. In claiming this, he recognized that positive law could be
substantively or procedurally unjust, and so not morally binding
The Philosophy of Liberal Conservatism 77

upon the citizen - a view of the limits of political obligation


expressed in the Thomist maxim lex injusta non est lex.
In the Introduction to Leviathan, Oakeshott argued that Plato,
Aristotle and Aquinas had sought to explain the bases of political
society in terms of the master-conceptions of reason and nature.
These philosophers had tended to see 'law as the product of
Reason', and to regard the authority of all political dominion as
being based in 'the superiority of Reason'. Oakeshott stressed that,
in contrast to his classical and medieval predecessors, Hobbes had
interpreted the reality of political society in terms of the master-
conceptions of will and artifice. As a result, Hobbes had derived the
essential conditions of political association not from any antecedent
principles of law and obligation, but solely from the philosophical
presupposition of the natural right of the individual agent. This right
of nature, or jus naturale, Hobbes distinguished from the earlier idea
of natural law - that is, the lex naturalis - and, indeed, from any
other type of normatively binding principle or standard of morality.
Hobbes had drawn this distinction, Oakeshott argued, because he
believed that the liberty or freedom of the individual agent, as
licensed by the foundational right of nature, was to be understood
as consisting in the 'absence of obligation'.14
Oakeshott emphasized that Hobbes had regarded natural right
as being an ultimate philosophical presupposition. For Hobbes, he
maintained, natural right had stood as an original and an absolute
right, in the sense that it derived directly from the character of the
will, rather than from any higher law or standard of reason. In
accordance with this idea of natural right, Hobbes had denied that
the exercise by the individual agent of his active powers and
capacities, as sanctioned by the right of nature, could be governed
by any form of practical deliberation concerned with the relation-
ship of particular actions to some ideal conception of the moral
goods and values supposedly conducive to the perfection of
human nature. In fact, Hobbes had conceived the highest human
good as a state of felicity, where this involved merely a 'continual
success in obtaining those things which a man from time to time
desires' .15 In doing so, Oakeshott argued, Hobbes had excluded
from his civil philosophy any regulative ideal of a summum bonum,
or ultimate human good, of the sort which informed the moral
teleology presupposed by the great pre-modern theorists of natural
law.
78 The Defence of Natural lAw

In Leviathan, Hobbes sought to describe the emergence of a law-


governed political society - that is, a commonwealth or civitas - from
a so-called state of nature, which he characterized as the condition of
the war of all against all. To this end, he constructed a hypothetical
model of prudential reasoning about the implications of certain
laws of nature, or so-called convenient articles of peace. These laws of
nature specified such basic principles of political association as the
duty to promote peace within society and the duty to fulfil the
terms of promissory agreements. In starting with these basic
principles, Hobbes adopted the idiom of the earlier natural law
philosophers. However, Oakeshott stressed that Hobbes had at-
tached no normative significance to the laws of nature, and, further,
that Hobbes had not believed these laws to possess the quality of
law in the proper sense. According to Hobbes, he argued, the laws
of nature were a set of rational theorems, which summarized the
principles of political association that would be accepted by any
human agent concerned solely with securing his own personal
advantage within society. As rational theorems, however, the
Hobbesian laws of nature gave rise to no genuine obligation. For
Hobbes, Oakeshott insisted, laws imposing a genuine moral or legal
obligation could never be established as the outcome of a procedure
of rational deliberation, but only as the consequence of some
voluntary act on the part of their subjects.
Oakeshott placed a special importance on the fact that Hobbes
had viewed all law as a form of command, which expressed the
will, rather than the reason, of its author. Under the terms of this
imperative analysis of law, he argued, Hobbes had taken the
distinguishing feature of civil law to lie in its being the command
of an authorized law-making institution - or sovereign - where this
sovereign was understood to possess an absolute authority in the
exercise of its legislative rights. Thus, for Hobbes, the creation of a
system of civil law always depended upon the existence of a
commonwealth with a determinate sovereign, whose authority
was 'artificial' in the respect of its being generated, not by natural
reason, but by an act involving the voluntary surrender of natural
right- an act which, on Hobbes's account, was embodied in some
notional contract, or covenant, that registered 'an agreement of wills'
among its parties. 16 Indeed Oakeshott' s reading of Leviathan implied
that, for Hobbes, a sovereign authority so generated remained the
sole source of genuine law within the commonwealth it constituted,
The Philosophy of Liberal Conservatism 79

and hence the sole source of the legally enforceable rights and
duties of its subjects.
Oakeshott considered that Hobbes's view of law, together with
the analysis of sovereignty which it presupposed, brought out the
full extent of his break with the rational-natural tradition in
political philosophy. According to the classic Thomist view, the
validity of positive law had depended upon its conformity to a
body of natural law discoverable by human reason. However, in
'The Moral Life in the Writings of Thomas Hobbes', Oakeshott
emphasized that Hobbes had believed the validity of civil laws, and
the moral obligatoriness of the constraints that civil laws imposed
on human conduct, to spring 'solely from the character of their
maker and the manner in which they [were] made, promulgated
and interpreted' .17 Indeed, he insisted that Hobbes had recognized
the existence of no general duty to promote peace within society
that was distinguishable from the duty to obey civil law. Hobbes, he
argued, had recognized only that the subject of a commonwealth
was bound by a duty to comply with the specific terms of the rules
of law commanded by its acknowledged sovereign: that is, 'the duty
of performing the acts prescribed by law'. 18
The theory of law and legal obligation that Oakeshott ascribed to
Hobbes in 'The Moral Life in the Writings of Thomas Hobbes'
supported the burden of his contention, in the Introduction to
Leviathan, that Hobbes had adhered closely to the ethos of the
philosophy of modern liberalism. Oakeshott read Leviathan as an
argument setting out 'the minimum condition of any settled associa-
tion among individuals'. This minimum condition of political
association was taken by Oakeshott to consist in the bare structure
of the constitution of the modern sovereign state - or, more
specifically, in the structure of the institutions of legislation,
adjudication and executive rule through which the office of
government of a state constituted itself as a single sovereign
authority. However, Oakeshott emphasized that Hobbes had at no
stage suggested that the integrity of the constitutional order of a
commonwealth presupposed a common will on the part of its
subjects, or their prior agreement about the requirements of the
common good. On the contrary, he claimed that Hobbes's voluntarist
interpretation of law as sovereign commands honoured precisely
the moral-political ideal of individual liberty which, he submitted,
was threatened by any identification of state and commonwealth
80 The Defence of Natural Law

with community, or by any analysis of 'law as Reason or custom'. 19


With this claim, he confirmed the central respects in which
Hobbes's imperative analysis of law had led to the conclusion of
jurists in the positivist tradition that state and society stood to each
other in an essentially dualistic relationship.
The outline of the civil philosophy sketched in the Introduction to
Leviathan formed the blueprint for the theory of law and political
society which Oakeshott went on to defend in On Human Conduct,
and in the essays 'The Vocabulary of a Modern European State'
(1975),20 'Talking Politics' (1975),21 and 'The Rule of Law' (1983). 22
Oakeshott examined the law and constitution of the modern state in
terms of a philosophical idea which he called civil association. For
Oakeshott, 'civil association' was a theoretical construct, or what he
termed an ideal character, which described the principles, or
postulates, of a certain type, or mode, of human relationship. As an
ideal character, the concept of civil association served to identify the
formal attributes of the rule of law, and to define the powers and
responsibilities of the judicial, legislative and executive branches of
government that structured the legal order of the modern state.
As formulated in On Human Conduct, the idea of civil association
conformed to the principles of political morality which Oakeshott
took to signal Hobbes's alignment with the philosophy of liberal-
ism, and to mark his divergence from the classical and medieval
philosophy of natural law. Hence, Oakeshott denied that the
legitimacy of the modern state derived from its conformity to
non-legal standards of justice or morality, like natural law, which
purported to represent an external ground of justification for the
authority of the rule of law. Instead, he identified the foundations of
political legitimacy with the formal principles of procedural justice
which comprised the inner morality of law: 'the quality of legal
subjects; rules not arbitrary, secret, retroactive or awards to inter-
ests; the independence of judicial proceedings (i.e. all claimants or
prosecutors, like defendants, are litigants); no so-called "public" or
"quasi-public" enterprise or corporation exempt from common
liability for wrong; no offence without specific prescription; no
penalty without specific offence; no disability or refusal of recog-
nition without established inadequacy of subscription; no outlawry,
etc., etc.'. 23 Only in the case of the failure by a government to
respect these principles of legal justice, Oakeshott suggested, did
any intelligible meaning attach to the classic natural law maxim 'lex
injusta non est lex' .2''
The Philosophy of Liberal Conservatism 81

Like Fuller, Oakeshott held that the normative authority of the


principles of legal justice derived from the status of law as a system
of non-instrumental, or non-purposive, rules. It was because of the
non-instrumental character which he ascribed to law that Oakeshott
took the principles of the procedural morality of law to ground the
legitimacy of constitutional government. These principles included
the principles of natural justice in adjudication, like the principle
audire alteram partem, which gave meaning to the idea of judicial
independence. The principles of legal morality also demanded that
the powers vested in the offices of government of the state should
be exercised in deference to the rule of law, and hence that the
occupants of these offices should be bound by law in both their
public and private capacities.
The theory of procedural justice essential to the concept of civil
association cohered with what Oakeshott regarded as the substance
of the voluntarist analysis of political obligation constructed by
Hobbes. In 'The Rule of Law', Oakeshott argued that Hobbes had
assumed not only that no natural man could possess 'the authority
to impose obligations on another', but also that while a man was not
free actually to 'choose his own obligations', nor could he 'become
obligated save by a choice of his own'.25 For his part, Oakeshott
affirmed that the authority of the law and constitution of the
modern state was based in the continuous recognition or
acknowledgement of this authority by the subjects of the state.
Indeed, it was this view of political obligation which he took to
be central to Hobbes's civil philosophy. However, he was also clear
that the moral authority possessed by the modern state in no way
hinged upon the actual choice or consent of its subjects. In fact, he
implied that any rule of law structured by the principles of
procedural legal justice imposed a moral obligation of compliance
which bound its subjects irrespective of their express choice or
consent. This was why Oakeshott asserted a fundamental contrast
between the form of human association constituted by the rule of
law and those forms of human association - like churches and
commercial corporations - which were, by definition, brought into
being and maintained with the explicit consent of their members.
Churches and commercial corporations exemplified an ideal
mode of human relationship which Oakeshott called enterprise
association. For Oakeshott, the essential feature of an enterprise
association was that its members were joined together in the
pursuit of a substantive common purpose, as with a commercial
82 The Defence of Natural Law

company, or in the care for some continuous or enduring common


interest or concern, as with a church - where such a purpose or
interest described the collective aims and objectives of the associa-
tion in question. An enterprise association was also distinguished,
Oakeshott claimed, in being subject to the moral requirement that
its members should be expected to participate in the promotion of
its defining purpose or interest only as a consequence of their
voluntary, and hence revocable, choice or agreement to do so - a
requirement which entailed that each member should be recognized
to remain at liberty to withdraw from the association by 'a choice of
his own'. 26
Oakeshott acknowledged that there were significant parallels
between civil association and enterprise association as modes of
human relationship. An enterprise association might be organized
around a formal constitution which specified binding conditions of
membership, or which authorized offices and procedures for the
administration of rules that promoted its defining purpose. How-
ever, Oakeshott insisted that the institutional structure of an
enterprise association diverged from the legal system of the
modern European state in one fundamental respect. Whereas an
enterprise association was a voluntary form of human association,
the civil relationship constituted by the modern state was essen-
tially compulsory or non-optional. It was necessary to the character
of the modern state, Oakeshott submitted, that its legal system
should include rules providing for the identification of its own
jurisdiction, together with rules authorizing the application of
coercive sanctions against the citizen for any failure to comply
with the duties and obligations expressly stipulated in law. It was
also necessary to the character of the modern state, he emphasized,
that the sovereign rights inherent in the office of its government
should not be limited by any antecedently specified articles or
conditions of association. Oakeshott argued that the compulsory
jurisdiction exercised by the modern state was morally defensible
because the legal order which it imposed did not serve to enlist its
subjects in the pursuit of any substantive common purpose or
interest. The legitimacy of an enterprise association, he contended,
was grounded in the moral freedom of its members, as this freedom
was reflected in their 'choice to be and to remain associated' in
terms of its 'common purpose'. Conversely, the freedom enjoyed by
the individual citizen under the rule of law in a modern state
The Philosophy of Liberal Conservatism 83

consisted in nothing less than 'the absence of such a purpose or


choice'.27
Oakeshott claimed that the freedom peculiar to civil association
was underwritten by those principles of procedural justice which
were uniquely appropriate to the modern legal order, considered in
its character as a system of non-instrumental rules. However, he
emphasized that the rules and official procedures constitutive of an
enterprise association lacked the quality of non-instrumentality
which distinguished an authentic system of law. Such rules and
procedures functioned, rather, as the means for the efficient
management of the pursuit of the common purpose of the enter-
prise in question. Accordingly, consideration of the propriety of the
rules and procedures of an enterprise association always tended to
involve an essentially utilitarian evaluation of their propensity to
promote its defining purpose. This was why Oakeshott denied that
there existed any guarantee that the managerial direction of an
enterprise association would conform to the principles of proced-
ural justice which grounded the legitimacy of the modern rule of
law. Indeed, he stressed that theories of political legitimacy in
which the state was represented as an enterprise association were
morally indefensible - in the sense that they provided no rationally
compelling arguments of political morality for forbidding govern-
ments from violating the rights of the individual person, as secured
by the principles of procedural legal justice, whenever this made for
the more efficient implementation of a collectively defined policy.
For Oakeshott, in fact, the logic of the state understood as an
enterprise association remained wholly consistent with the ascrip-
tion to the office of its government of 'the authority to exterminate
associates whose continued existence [was] ju~ed to be irredeem-
ably prejudicial to the pursuit of its purpose'.
In On Human Conduct, Oakeshott drew a cardinal distinction
between the individual rights guaranteed by the morality of law
and the particular schedules of individual rights granted under the
terms of the constitutions adopted in different societies. In doing so,
he challenged the widespread assumption of theorists in the
tradition of modern liberalism that there existed an essential
connection between the principles of constitutional government
and the system of representative democracy. For his part, Oake-
shott was clear that the essential principle of constitutional govern-
ment was that of judicial independence. Oakeshott did not accept
84 The Defence of Natural Law

that judicial independence was secured merely by that part of the


law which settled the balance of institutional powers between the
adjudicative, legislative and executive branches of government. The
principle of the independence of the courts, he suggested, was itself
implied by the methods of judicial reasoning that served to
distinguish the office of civil adjudication from such bodies as
boards of inquiry and tribunals of arbitration. These methods of
judicial reasoning bound the courts to interpret the law in its
relation to the contingent circumstances of the individual disputes
presented for decision. Accordingly, a judicial conclusion always
involved a reasoned amplification of the meaning of a rule of law - a
meaning which could not, as a matter of logic, be given in the
explicit terms of the law enacted through an office of legislation.
Oakeshott insisted that the creative element essential to judicial
deliberation did not in any way imply that the courts were
permitted to discharge legislative responsibilities. He denied that
the courts were entitled to decide cases on grounds of public policy,
or on the basis of an assessment of the public interest. He also
denied that adjudication involved an exercise of judicial discretion
which reflected the subjective will of the judge, or the judge's
"'subjective" opinion about good or bad conduct'.29 Not only were
the courts bound to adjudicate in conformity to the legal rules
which described their jurisdiction and procedures. Even more
fundamentally, Oakeshott claimed, the authority of an adjudicative
conclusion derived from its conformity to the internal constraints of
judicial discipline. Under this discipline, it was required that the
meaning ascribed to a legal rule in a judicial conclusion should be
justified in arguments which demonstrated the connection between
that meaning and the body of existing law as a whole. For
Oakeshott, then, the courts were bound to preserve the systematic
unity of the law, not only by being bound to decide cases by
reference to existing rules of law, but also because they were
bound to justify their decisions through the amplification of the
meanings ascribed to these rules in earlier judicial decisions.
In common with Fuller's, Oakeshott's analysis of civil adjudic-
ation provided an important corrective to the tendency of the
positivist jurists to focus narrowly on the type of law brought into
being through the procedure of statutory legislation. In contrast to
Fuller, though, Oakeshott did not go on to draw the conclusion that
attention to the logic of judicial deliberation called into question the
dualism of law and society presupposed in the model of law which
The Philosophy of Liberal Conservatism 85

the legal positivists inherited from Hobbes. Oakeshott did not


dispute that the courts acted on the assumption that principles of
equity were themselves an integral part of the law. At the same
time, he emphasized that the principles governing judicial proced-
ure demanded that courts should consider 'actual performances
solely in respect of their legality'. 30 This was why he maintained
that judges were not at liberty to base their deliberations upon
general principles of justice or morality, unless these principles had
already gained recognition in conventional law. Thus, in 'The Rule
of Law', he rejected the sort of view defended by Dworkin,
according to which the courts were supposed to decide cases in
terms of reasoning about the meaning of background rights
assumed in general moral opinion, like 'the right to speak, to be
informed, [or] to enjoy an equal opportunity'. 31 In doing so,
however, he excluded the possibility that general principles of
political morality - particularly those anchored in the customary
practices of society - might provide a foundation for the judicial
determination of legal rights and duties in cases involving disagree-
ment about the meaning of conventional law.
Far more than Fuller, then, Oakeshott affirmed that the structure
of the modem rule of law depended upon a sovereign office of
legislation. For Oakeshott, it was only by virtue of the powers
inherent in the supreme legislative institution of a political com-
munity that its system of law could be rendered subject to
deliberate alteration. Oakeshott argued neither that statutory legis-
lation should be treated as the exclusive source of law in a given
legal system, nor that the different types of legal rule comprising
that system should necessarily be codified in the form of statute
law. However, he did insist, first, that the rules brought into being
by a supreme office of legislation should remain immune from
alteration by some independent law-making agency; and, second,
that any rule recognized to have its origins in custom should be
'lodged within the custody of the legislative office', and hence be
subject to 'a presumption ... that it [could not] resist appropriation,
rejection or emendation in a legislative enactment'.32 It was in these
terms that Oakeshott understood the supreme office of legislation in
a modem state to exercise sovereign rights over the territory and
peoples falling under its jurisdiction.
Of course, Oakeshott recognized that a sovereign office of
legislation was always limited by rules of procedure specifying
conditions for the valid prescription and repeal of law. For
86 The Defence of Natural Law

Oakeshott, however, these rules of procedure, together with the


background principles of procedural legal morality, constituted the
only objectively valid criteria for determining the authenticity of the
law created through the formal process of statutory legislation. In
this way, Oakeshott's specification of the sovereign rights inherent
in a supreme office of legislation underwrote the fundamental
distinction between civil law and general standards of justice and
morality that informed his discussion of adjudication.
The centrality that Oakeshott assigned to the sovereign office of
legislation in his analysis of the rule of law brought out the crucial
respects in which the idea of civil association represented an
abstract philosophical schematization of the basic structure of legal
and constitutional organization adopted by the states of modem
Western Europe. In the final part of On Human Conduct, 'On the
Character of a Modem European State', Oakeshott traced the
historical development of these states from their origins in the late
Middle Ages. It was during the fifteenth and sixteenth centuries, he
contended, that the European states established their authority
through the progressive incorporation of the multiplicity of
seigneurial rights and ecclesiastical privileges which had struct-
ured the feudal order of pre-modem society in the West. Above all,
he argued, this period of political centralization had witnessed the
repudiation by the rulers of the emerging states of Western Europe
of the jurisdictional claims of the medieval Church and the Holy
Roman Empire, together with their absorption or suppression of the
subordinate jurisdictions exercised by all existing systems of
customary law and local courts.
Oakeshott took the period of the Reformation to mark the
decisive stage in the evolution of the specifically modem concep-
tion of the European state. For Oakeshott, it was during the
Reformation that the state came to be regarded as comprising a
system of formally constituted offices and procedures, whose
primary concern lay with the maintenance of a legally defined
relationship between ruler and subject. Under this conception of
political society, the ruler of a state was no longer distinguished by
reason of his status as a seigneur or lord of a landed estate. Instead,
the ruler was acknowledged as 'the custodian of a ''law of the land"
prescribing the rights and obligations which identified subjects, of a
judicial system, of authoritative procedures for making and amend-
ing this law and for raising public revenue'. Moreover, the
institutionally defined powers acquired and exercised by the civil
The Philosophy of Liberal Conservatism 87

ruler were taken to constitute 'a single inalienable authority', which


was recognized to be the ultimate object for the allegiance of its
subjects. Accordingly, Oakeshott concluded that a modem Eur-
opean state was a free or sovereign association: first, because its
government was not itself 'subject to any superior external author-
ity'; second, because it was essentially an 'association in terms of
law'; and third, because its government included procedures to
liberate itself from its 1egal past', procedures which presupposed
'the supremacy of the legislative act over ancient law and custom'.33
Oakeshott did not claim that the emergence of the distinctively
modem concept of the state during the Reformation period had
involved a complete abandonment of theories of law and govern-
ment whose provenance lay in the medieval experience of society.
In fact, he argued that many of the ambivalences running through
the vocabulary of European politics were best explained by
reference to the two concepts in the terminology of Roman law of
societas and universitas, as these concepts had been used by medieval
jurists for the designation of different types of legal and corporate
association. Most modem reflection on the limits, justification and
functions of civil government, he insisted, should be read as
involving a tension, first apparent in twelfth-century thought and
then firmly entrenched in the legal and political discourse of the
later Middle Ages, between the idea of the state understood as a
societas and the idea of the state understood as a universitas.
According to Oakeshott, medieval jurists had not restricted the
concept of societas to the understanding of associations which
possessed a formal legal character. In their specification of it, he
argued, the concept of societas could be considered as having
application, not only to the formally constituted order of a common-
wealth, but also to the spontaneous relationships obtaining between
friends or speakers of a common language, and even to the
relationship between members of the human race as a whole. In
its narrowly juristic meaning, however, societas described a mode of
human association which was identifiable as 'the product of a pact
or an agreement, not to act in concert but to acknowledge the
authority of certain conditions in acting'. A societas, then, was a
formal relationship in terms of rules which were not themselves
instrumental to the promotion of some substantive common
purpose, and a relationship which was not itself the outcome of
an explicit voluntary undertaking on the part of its members.
Hence, the essential condition for membership of a societas was
88 The Defence of Natural Law

'not the choice to be related but the recognition of understood terms


of relationship'.34 In these respects, Oakeshott suggested, the idea of
societas had foreshadowed the understanding of the state as a civil
association, whose government was assumed to be a nomocracy: that
is, a complex system of laws and procedures that existed to promote
no end or purpose external to the structure of its own formal
organization.
In contrast to that of societas, Oakeshott argued, the concept of
universitas specified an inherently corporate mode of human associa-
tion - or what Oakeshott called a corporation aggregate. It was in this
sense that the concept had been used by medieval jurists in the
description of particular institutions of medieval European society,
like boroughs, collegiate churches, cathedral chapters and Imperial
cities. As understood by medieval jurists, a universitas was an
essentially voluntary association of human beings, who were
united In terms of 'some identified common purpose, in the pursuit
of some acknowledged substantive end, or in the promotion of
some specified enduring interest'. Hence, it was essential to the
character of a universitas that its members remained at liberty to
withdraw from the relationship which it constituted by the exercise
of 'a choice to dissociate'. 35
Oakeshott emphasized that, for medieval jurists, a universitas was
a formally constituted relationship, whose parties were often
required to subscribe to certain binding articles of association.
These articles of association served to define the purpose or
concern of the corporation in question, to prescribe rules for the
conduct of its members, and to institute administrative offices and
procedures for the management of its affairs. In this way, the idea of
universitas lay behind the development of what Oakeshott character-
ized as the understanding of the modem state as an enterprise
association, whose government was assumed to be a teleocracy: that
is, a complex apparatus of rules and procedures of administration
which existed to promote a collectively defined end or purpose that
remained external to itself.
Oakeshott claimed that the concept of universitas significantly
misrepresented the character of the states which began to establish
their sovereign authority in Europe during the sixteenth century.
The jurists of the later Middle Ages had understood a corporation
aggregate to be an association created through the act of some
higher legal authority. They had also understood a corporation
The Philosophy of Liberal Conservatism 89

aggregate to remain subject to visitation and inspection by the


authority which created it. However, Oakeshott emphasized that
this subjection to the visitation and inspection of a higher legal
authority was a feature of corporate association which could not be
reconciled with the character of the particular kind of association
that came into being with the emergence of the modem European
states. Indeed, he went on to suggest that the emergence of a free, or
sovereign, state could be said to have presupposed the denial of any
such subjection to visitation and inspection by a superior legal
authority.
The concept of societas, on the other hand, was consistent with the
principles of civil association that Oakeshott saw embodied in the
states of modem Europe. The definition of the state as a societas
answered to the compulsory jurisdiction imposed by the modem
rule of law, faithfully described the nature of the sovereign powers
inherent in the office of civil government, and sanctioned the
internal connection which Oakeshott took to obtain between the
rights of the individual, as secured by the procedural morality of
law, and the office of government of the modem European state
considered in its character as a nomocracy.
Oakeshott contended that the understanding of the state as a
societas had been propagated by the work of theorists, like Locke,
Montesquieu, Paine and Mill, who stood in the broad mainstream
of European liberalism. More specifically, he argued that this
understanding of the state had been central to the great modem
tradition of political philosophy reflected in the work of Bodin,
Hobbes, Spinoza, Kant and Hegel. Although including Hegel
among the defenders of societas, Oakeshott did not intend in doing
so to endorse the sort of communitarian principles of political
morality defended in 'The Authority of the State'. Throughout On
Human Conduct, he implicitly condemned the deployment by
European governments of the coercive machinery of the state to
impose cultural, moral or religious uniformity upon the wider
political community. Indeed, he insisted that the confessional states
instituted by Catholic and Protestant rulers during the period of the
Counter-Reformation had - and to no less a degree than the
totalitarian states constructed in the twentieth century by the rulers
of National Socialist Germany and Soviet Russia - drawn their
inspiration from an underlying conviction that the modem state
was to be conceived as a universitas.
90 The Defence of Natural Law

Oakeshott maintained that the understanding of the state as a


universitas was reflected in a continuous European tradition of
political theory and practice. This understanding of the state had
become entrenched during the modem period, he suggested,
because of the survival and progressive extension of procedures
of government appropriate to the political and economic organiz-
ation of medieval feudalism. Despite the emergence of a recogniz-
ably modem concept of the state during the sixteenth century, he
claimed, the European state had continued to be regarded as a
seigneurial domain, over which its government was held to exercise
rights, not of civil rulership, but of lordship. This inherently
teleocratic view of the state and the office of its government had
been present in the thought of modem theorists as historically
diverse as Bacon, Saint-Simon and Lenin. These exponents of
teleocracy were united, Oakeshott argued, in their identification
of the state as a dvitas cupiditatis: that is, as 'a corporate productive
enterprise, centred upon the exploitation of the material and human
resources of an estate and managed by a government whose office it
was . . . to make instrumental rules for the conduct of the enter-
prise, to assign to each of its "subjects" his role in the undertaking
and to deploy their productive energies and talents according to a
"scientifically" deliberated plan'.36
For Oakeshott, the belief that the modem state was a dvitas
cupiditatis had promoted the technocratic form of public adminis-
tration which came to enjoy ascendancy in the advanced societies of
the West during and after the European Enlightenment. Hence, the
idea of the state as a dvitas cupiditatis was taken by Oakeshott to
stand behind all the core policies of modem collectivism, like the
pursuit of full employment and the maintenance of public welfare
provision, which required that the office of civil government should
discharge ultimate responsibility for the organization and direction
of economic production and distribution within society. In claiming
this, however, Oakeshott did not mean merely to complain that the
teleocratic engagements of modem governments had departed from
the ethos of the tradition of liberalism in moral and political
philosophy, as this tradition was reflected in the understanding of
the state as a societas. More strongly, he wanted to insist that the
attempt by modem governments to realize the ideal of the state as a
universitas had led to the systematic violation of the only principles
of justice and individual moral freedom which could convincingly
secure the legitimacy of the modem rule of law.
The Philosophy of Liberal Conservatism 91

ii. THE LffiERAL THEORY OF JUSTICE:


OAKESHOIT AND RAWLS

For Oakeshott, then, the idea of civil association identified the


formal attributes of the modem rule of law. However, he signally
failed to clarify the exact philosophical status of this abstract
theoretical specification of an ideal political society. On the one
hand, the idea of civil association functioned as the basis for a
philosophico-historical explanation of the constitutional order of the
European states that emerged during the period of the Reformation.
On the other hand, Oakeshott prescribed the idea of civil associa-
tion as the basis for a fully nonnative theory of political morality,
which set out the only principles of legitimacy that he believed
could confer moral validity upon the rule of law maintained by the
modem state. It was by appeal to such universalist principles that
Oakeshott distinguished between the form of government appro-
priate to the state understood as a societas and that appropriate to
the state understood as a universitas. In this normative sense, the
principles of political morality enshrined in the ideal of civil
association served to provide an objective critical standpoint, from
which Oakeshott challenged the legitimacy of the teleocratic
conventions of public administration that characterized the mod-
em European state.
Nevertheless, there remained a tension in Oakeshott's work
between his ostensibly normative concerns in On Human Conduct
and the more narrowly explanatory orientation of the critique of
European rationalism provided in the essays collected in Rationalism
in Politics. Indeed, in most of his writings from the 1940s and 1950s,
Oakeshott was disposed to deny universal authority to any abstract
principles of political morality.
Oakeshott attributed the predominance of rationalism in modem
European politics to the pervasiveness of the assumptions in the
philosophy of mind associated with the work of the French
philosopher Rene Descartes (1596-1650). It had been Descartes's
aim to establish a distinct philosophical method - the so-called
method of doubt - which, in identifying the first principles of
epistemology and metaphysics, would underwrite the procedures
of systematic enquiry adopted in the inductive sciences. This
method of doubt received its most detailed exposition in three
works whose composition effectively marked the starting-point of
the modem tradition in philosophy: the Discourse on the Method
92 The Defence of Natural Law

(1637),37 the Meditations on First Philosophy (1641),38 and the Princi-


ples of Philosophy (1644).39
As formulated in these works, the method of doubt was intended
by Descartes to pave the way for the discovery of a body of
objective knowledge, whose validity would not depend upon any
belief or opinion which remained vulnerable to sceptical doubt. The
method was so structured by Descartes that, under its terms, it was
possible to doubt not only the evidence of the senses and the
memory as to the existence of the physical universe, but also such
fundamental assumptions of scientific enquiry as the assumption
that the physical universe conformed to regular laws rendering it
intelligible to human understanding. Nonetheless, Descartes insis-
ted that the application of the method of doubt would necessarily
terminate in the isolation of the single, indubitable proposition
contained in the celebrated theory of the cogito: namely, the self-
verifying proposition that the existence of the human subject was
implied by the very fact of his conscious engagement in the process
of doubting itself.
Neither the method of doubt, nor the doctrine of the cogito which
was its outcome, committed Descartes to a position of extreme
epistemological scepticism. In fact, in the Cartesian system, the
existence of God functioned as an ultimate metaphysical postu-
late, which guaranteed the possibility that the conscious mental
states of the human subject might actually correspond to an
independent order of being. Although much criticized by later
philosophers, the arguments which Descartes constructed to prove
the necessary existence of God were of great historical importance.
Crucially, the arguments betrayed Descartes's underlying convic-
tion that a methodologically pure programme of scientific enquiry
could yield a unified corpus of objectively valid human knowledge,
where this body of knowledge would not be merely a schematic
rationalization of the ungrounded beliefs and practical assumptions
relative to a particular culture or society, or relative to a particular
historical epoch. Indeed, the ideal of some absolute and perspectiveless
conception of reality - an ideal implicit in the Cartesian notion of
God as a kind of ultimate, self-subsisting guarantor of objective
knowledge- has been taken by Bernard Williams, in his Descartes,40
to be a deep-rooted metaphysical presupposition underlying the
theory and practice of virtually the whole of modem science.
In its concern with systematic method in human enquiry,
Descartes's work reflected the intellectual mentalities nurtured by
The Philosophy of Liberal Conservatism 93

the scientific revolution in Europe of the sixteenth and seventeenth


centuries. At the same time, in his emphasis on epistemology as the
proper foundation for the first principles of philosophy, Descartes
exerted a decisive influence upon the emergence of the philosophi-
cal tradition of modern empiricism. As applied in the Discourse and
the Meditations, the method of doubt compelled Descartes to derive
the first principles of philosophy from an examination of the states
of consciousness of the subject of experience. The terms of the
method also required Descartes to assume that the acquaintance
of the human subject with the contents of his own states of
consciousness possessed a kind of certainty which was necessarily
absent from his knowledge of the physical universe. The method of
doubt thus led inexorably to the view - commonly ascribed to
Descartes, and, indeed, to empiricist philosophers generally - that
all subjective experience remained irreducibly private in character.
The private status assigned to subjective experience under the
terms of the Cartesian philosophical system followed as a direct
consequence of the dualistic relationship which Descartes took to
obtain between mind and body. In the Meditations, Descartes
claimed that the human subject could legitimately doubt not just
the reality of the physical universe, but also the very existence of his
own body. In doing so, Descartes committed himself to the view
that the bare capacity for conscious reflection constituted the only
defining attribute which was essential to the nature of the human
subject - with the result that, for Descartes, it stood as a purely
contingent fact that the human subject actually inhabited a body
whose movements were expressive of will and intention. By
arguing in this way for the non-necessary connection of mind and
body, however, Descartes implied an absolute metaphysical dis-
junction between the category of thought - which pertained to the
soul considered as an immaterial substance- and the category of
extension - which pertained to material objects whose motions
conformed to the kind of mechanical laws of cause and effect
formulated in the physical sciences.
The Cartesian dualism of mind and body underscored the great
historical divide between modern philosophy, in which the focus of
concern in epistemology lay with contemplative or theoretical knowl-
edge, and ancient and medieval philosophy, in which equal
attention had been paid to practical knowledge: that is, the form of
knowledge involved in the exercise by the human agent of his
active powers and capacities. The priority which Descartes awarded
94 The Defence of Natural Law

to theoretical knowledge was, of course, built into the whole Cartes-


ian enterprise of validating the procedures of scientific enquiry. In
the broadest context, though, Descartes's concern with theoretical
knowledge prefigured the distinction between facts and values
drawn by later philosophers in the empiricist tradition, in addition
to foreshadowing the great dissociation of scientific enquiry from
the moral disciplines of humane learning which characterized the
culture of the European Enlightenment. Indeed, the Cartesian view
of theoretical knowledge informed the guiding assumption of
modern rationalism that the art of government was a matter of
technical, rather than practical, expertise, in which public policies
could be meaningfully selected without consideration of the moral
values at stake in the institutional means for their implementation.
Many key elements of the Cartesian philosophy were challenged
by later thinkers- particularly by those, like Kant and Hegel, who
stood in the tradition of philosophical idealism. In the Phenomenol-
ogy of Spirit, Hegel rejected the Cartesian conception of the self as a
passive subject of experience. Contrary to Descartes, Hegel insisted
that the subject of experience was constituted as an individual
person only through the dynamic process of self-realization - that
is, through the practical activity of the subject in and upon an
objective world which comprehended both the natural order and
the system of public conventions and institutions that comprised
human society. Hegel also disavowed the metaphysical dualism of
mind and body implicit in the Cartesian conception of the self. For
Hegel, the concept of the subject, or person, necessarily, and not just
contingently, contained the idea of a body through which the
desires and intentions that sustained the identity of the self were
realized in the objective world. In consequence, he recognized no
ultimate distinction between the theoretical and practical modes of
reason, and, hence, no ultimate distinction between the scientific
and moral forms of human consciousness. Indeed, Hegel looked
back beyond Descartes to the work of those ancient and medieval
philosophers, like Aristotle and Aquinas, who had endeavoured to
locate the basis of human morality in universal principles of
practical reason.
In contrast to pre-modern philosophers, though, Hegel held that
the theoretical and practical modes of reason stood in a dialectical
relationship, whose inner logic was manifested in the historical
evolution of human society itself. Hegel differed from Aristotle and
Aquinas, then, in emphasizing that normative principles of practical
The Philosophy of Liberal Conservatism 95

deliberation, including those embodied in publicly defined rules


and institutions, were always rooted in the historical circumstances
of the agent and of the particular society in which the agent was
situated. In this respect, the historical interpretation of practical
reason defended in the Phenomenology worked to defeat Descartes's
attempt to order intellectual enquiry around the regulative ideal of
an absolute and perspectiveless conception of reality. This was so
because, under the terms of Hegel's dialectical logic, all forms of
rational reflection and enquiry - whether practical, scientific or
philosophical - necessarily involved the abstract schematization of
the collective spirit, or consciousness, of an actual society at some
concrete stage in its historical development.
In addressing the tradition of European rationalism during the
1940s and 1950s, Oakeshott took up the philosophical viewpoint of
Hegelian idealism. In doing this, he brought out the deep under-
lying connections between the dominance of the metaphysical idea
of the self which originated with Descartes, the ascendancy of the
supposedly value-free methods of enquiry associated with the
empirical social sciences, and the ultimate failure of philosophers
during the Enlightenment to provide a genuinely historical under-
standing of the theory and practice of politics.
In the seminal articles 'Rationalism in Politics' (1947) 41 and
'Rational Conduct' (1950),42 Oakeshott attended directly to the
character of the philosophy of mind presupposed by the sort of
principles of method for intellectual enquiry constructed by Des-
cartes in the Discourse. As devised by Descartes (and earlier in
England by Bacon), Oakeshott argued, this method of enquiry had
taken the form of a set of precisely formulated rules and directions.
Moreover, the application of the method had been held to be both
mechanical - in the sense that it required no knowledge or intelli-
gence which was not explicit in its own rules- and universal- in the
sense that the method constituted an instrument of enquiry
appropriate to any intellectual subject-matter and to any given
form of human activity.
Oakeshott emphasized that the principles of method constructed
by Bacon and Descartes had been modelled closely on the proce-
dures of investigation adopted in the natural sciences. As a result,
Bacon and Descartes had assumed that the generation of human
knowledge depended upon the theoretical mastery of a technique of
enquiry. However, Oakeshott insisted that this view of knowledge
remained radically defective - chiefly because it neglected the
96 The Defence of Natural LAw

element of practical judgment necessary for the meaningful inter-


pretation and application of the rules and directions which com-
prised any formal method of technical or scientific enquiry. Indeed,
he claimed that the conditions for the proper exercise of practical
judgment by the individual were always determined by public
criteria embedded in the customs and institutions of specific
human societies. This was why, for Oakeshott, the element of
practical judgment necessary to intellectual enquiry confirmed at
once the irreducibly social dimension of all human knowledge, and
the strictly historical status of the principles of scientific method
formulated by Bacon and Descartes.
Oakeshott complained that a preoccupation with the logic of
scientific enquiry had led theorists like Bacon and Descartes to
misconceive the type of rationality that informed human activities
which were not governed by formal rules of method. According to
Oakeshott, it was an essential feature of practices like carpentry,
cooking and politics that they admitted of no ultimate distinction
between the reflective determination of their defining aims and
objectives and the activities through which these aims and objec-
tives were realized. Indeed, he took the character of the kind of
knowledge necessary to participation in such practices to belie the
metaphysical dualism of mind and body underlying the Cartesian
philosophy generally, and also to belie the metaphysical disjunction
between means and ends in the explanation of public procedures
and institutions implied by Descartes's principles of technical
method. It was in these senses that Oakeshott rejected the instru-
mentalist view of social order endorsed by the British empiricist
philosophers who had adhered to the tenets of the Cartesian
epistemology. Instead, he followed Hegel in affirming that human
ends, as well as the procedures for their realization, were always
internal to the structure of social and institutional arrangements.
Hence in 'The Tower of Babel' (1948),43 arguably his most Hegelian
essay, he emphasized that the greater part of human morality
involved less a reflective adherence to formal rules and precepts,
than the unself-conscious observance of the established moral
customs and traditions of concrete historical communities.
In 'Rationalism in Politics', Oakeshott contended that the ration-
alist strain in ethics and political philosophy had developed largely
in response to the needs of the ruling elites thrown up by the
emergence of the new European states in the sixteenth century.
Rationalism had gone on to consolidate its cultural hegemony
The Philosophy of Liberal Conservatism 97

during the Enlightenment, a period distinguished, for Oakeshott,


by the disposition to subject to the scrutiny of reason the authority
vested in 'the social, political, legal and institutional inheritance of
... society'.'" The later movement towards liberal democracy, that
followed the revolutionary upheavals in the United States and
France, had in tum witnessed a concerted attempt on the part of
political theorists to establish the legitimacy of modem institutions
of law and government upon the foundations of a comprehensive
science of society. However, the efforts of these theorists had
resulted only in the propagation of abstract political ideologies -
ideologies which, Oakeshott argued, represented little more than a
formalized abridgment of the substratum of rational truth contained in
existing traditions of political practice.
Oakeshott was deeply mistrustful of the growth of scientism in
politics after the Enlightenment. In the Cambridge Journal article
'Scientific Politics' (1948),45 for instance, he suggested that the
explanatory authority assigned to value-free sociology in the West
had served to mask the arbitrariness of the moral and intellectual
assumptions which structured all political argument. In 'Political
Laws and Captive Audiences' (1964),46 he raised much the same
sort of objection to the model of socio-economic determinism
favoured by intellectual apologists for the Marxist-Leninist
regimes of postwar Eastern Europe. Even so, he did not identify
the mentalities of rationalism with leftist doctrine and practice in
any exclusive sense.
In Political Education,47 the Inaugural Lecture delivered on his
appointment as Professor of Politics at the London School of
Economics in 1951, Oakeshott famously denounced the ideological
style of political activity. This style of politics, he claimed, had
disfigured the entire tradition of modem European statecraft. For
his part, Oakeshott denied that political activity was to be under-
stood as involving the technical implementation of policies which
had been independently premeditated in the form of an ideology.
An ideology, he submitted, was but the abstract schematization of a
traditional manner of political behaviour specific to some actual
historical community. Political activity was more properly to be
understood, he insisted, as consisting in the reasoned interpretation
of the directions for change intimated in the traditional political
arrangements internal to a given society. In its form as the pursuit of
intimations, however, political activity was only clouded by general
principles of political morality, like natural law or natural right.
98 The Defence of Natural Law

Accordingly, Oakeshott concluded that the knowledge appropriate


to meaningful participation in political practice was essentially
'municipal, not universal' .48
Political Education made clear the extent to which Oakeshott's
critique of rationalism challenged the standing assumptions of
liberalism as a philosophy of political morality. Certainly, the
emphasis placed in Oakeshott's Inaugural Lecture on tradition-
based forms of political behaviour, as an ultimate precondition of
intelligent political activity, brought into question the kind of
metaphysical dualism between individual and society characteris-
tically assumed by the classical theorists of liberalism. More
strongly, the defence of traditionalism running through Oake-
shott's work in the 1940s and 1950s implied that liberalism was
itself an ideology, and one which had manifestly fallen short of
generating any universally compelling principles of political mor-
ality. Indeed, Oakeshott was emphatic that all institutionalized
arrangements of law and state, together with the principles of
political morality asserted in support of their legitimacy, were
grounded ultimately in the historical conventions of particular
human communities. However, despite the sceptical viewpoint of
historical relativism adopted in Political Education, Oakeshott, in On
Human Conduct, clearly set out to specify certain universally valid
principles of political morality. In specifying these principles,
moreover, Oakeshott constructed a theoretical model of the law
and constitution of the modern European state which accorded with
the ideals of the morality of individualism that he saw informing
Hobbes's civil philosophy. In these respects, On Human Conduct
ranks as a notable contribution to the liberal tradition in political
philosophy. In fact, the moral and political presuppositions of the
idea of the state as a civil association, and of that of the state as a
societas, were continuous with those underlying the restatements of
the liberal theory of justice defended by philosophers, such as John
Rawls and Robert Nozick, who were, superficially at least, Oake-
shott's ideological antagonists.
Rawls published A Theory of Justice in 1971, four years before the
publication of On Human Conduct. In writing A Theory of Justice,
Rawls explored all the great philosophical ideas of political mor-
ality, like those of justice, rights and obligation. His more particular
purpose, though, was to explain the legitimacy of contemporary
institutions of law, government and economic organization in terms
of certain fundamental principles of justice as fairness. These
The Philosophy of Liberal Conseroatism 99

principles provided, first, that each individual person - as a subject


of justice - should be granted 'an equal right to the most extensive
total system of equal basic liberties compatible with a similar
system of liberty for all'; and, second, that social and economic
inequalities should be so arranged that they were both '(a) to the
greatest benefit of the least advantaged ..., and (b) attached to
offices and positions open to all under conditions of fair equality of
opportunity' .49
The principles of justice as fairness were intended by Rawls to
underwrite the moral authority of the constitutional arrangements
of Western liberal democracy, and to disclose the congruence
between this form of political organization and an egalitarian
theory of distributive justice. The first principle of justice grounded
the moral and political liberties which secured the reality of equal
citizenship under the liberal constitution. These constitutionally
defined liberties included the right to vote and stand for public
office, the rights to freedom of speech, assembly and religious
confession, together with the rights to hold private property and
to enjoy due process of law.
The second principle of justice as fairness bore directly upon the
structure of the basic economic arrangements of society and their
background institutions. Hence, the principle had application both
to the distribution of wealth and income throughout society, as well
as to organizations, whether public or private, whose members
occupied offices and positions with distinct powers and responsi-
bilities. In describing the objective conditions for the realization of
justice as fairness, Rawls did not advocate a state monopoly on the
means of economic production and distribution. Although allowing
for a substantial public sector in the provision of certain goods and
services, Rawls also emphasized that the principles of justice as
fairness were consistent with the basic institutional structure of free
market capitalism. The institutions of private ownership and
voluntary contract, he argued, were actually essential to the ideal
of equal liberty enshrined in the first principle of justice as fairness.
Indeed, he stressed that the free market economy tended to promote
the whole system of individual rights and liberties demanded
under the first principle of justice. This was so because the free
market economy preserved the 'free choice of careers and occupa-
tions', while excluding any form of political control that depended
on the 'forced and central direction of labor' or on 'comprehensive
direct planning'. 50
100 The Defence of Natural Law

Rawls accepted that the operation of the free market generated


significant inequalities in the allocation of social and economic
goods. These inequalities were brought about partly as a result of
the initial distribution of natural talents and inherited wealth, and
partly as a consequence of the morally permissible exercise of
freedom of economic choice by individuals under market condi-
tions. In these respects, Rawls denied that the allocation of social
and economic advantages should be absolutely equal between the
different members of a given community. At the same time, though,
he insisted that the distribution of advantages determined by the
operation of the free market was morally defensible only when it
satisfied the so-called difference principle embodied in the second
requirement of justice as fairness. This principle provided that any
inequalities which were necessary for the efficient functioning of a
society should always be made to work for the benefit of those of its
members least favoured by the prevailing distribution of goods and
opportunities. In this way, the difference principle answered to the
intuitive moral idea that a community was not justly constituted if
its social and economic order existed merely 'to establish and secure
the more attractive prospects of those better off.51
Rawls believed that the moral force attaching to the difference
principle was such that it justified the subjection of the free market
economy within a modem society to wide-ranging regulation by
central government. Some institutions of government were neces-
sary, he suggested, in order to maintain the efficiency of the market,
by safeguarding the free choice of occupation and by creating an
economic environment conducive to reasonably full employment
and reasonably competitive prices. Other institutions of govern-
ment were necessary to meet those human needs which could not
be satisfied by the competitive price system that functioned as the
primary mechanism of market distribution. These institutions were
empowered to transfer privately owned economic resources
through the instrument of redistributive taxation, thereby financ-
ing the provision of key public services and guaranteeing each
citizen an income which represented a basic social minimum. In this
way, Rawls claimed, the institutions of economic transfer ensured
that a free market would conform to the moral constraints of equal
liberty and the difference principle imposed by the two founda-
tional principles of justice as fairness.
Unlike Oakeshott, then, Rawls did not expound an exclusively
procedural or formal theory of justice. Instead, he defended a
The Philosophy of Liberal Conservatism 101

substantive or constitutive theory of justice, that applied to the actual


results of the processes by which social and economic goods were
produced and allocated. Rawls recognized that the formal principles
of legal morality, as these regulated the administration of the law,
were overriding requirements of justice. Nevertheless, he affirmed
that justice was ultimately a critical concept, which carried with it
fully evaluative criteria for the determination of the fairness of the
whole structure of a given political community. In consequence,
Rawls assumed that the social and economic arrangements of a
political community were legitimately subject to the sovereign
rights of legislation vested in its office of government.
In contrast to Rawls, Oakeshott denied that the rule of law was a
legitimate instrument for the realization of social justice. In both On
Human Conduct and 'The Rule of Law', he expressly rejected Rawls's
basic premise that the modern legal system incorporated rules for
'the distribution of desirable substantive goods',52 and, with it,
Rawls's entire analysis of justice as 'a consideration of "fairness"
in the distribution of scarce resources'. 53 Throughout On Human
Conduct, he contended that it was a fundamental misconception of
their character to regard legal norms (as Rawls, certainly to an
extent, was led to do) as regulations, or directives, for awarding
material benefits to their subjects. The moral authority of the rule of
law, he argued, could in no way derive from its promotion of an
egalitarian, or any other objectively principled, distribution of
economic goods and social opportunities within the wider
community. As a result, he did not accept the universality of the
standards of justice which Rawls took to require that the citizens of
a modern state should be ascribed rights to the enjoyment of
substantive goods and benefits, such as free medical care or a
guaranteed minimum income. On the contrary, the only rights
that Oakeshott acknowledged to be universally binding require-
ments of justice were those based in the entitlement to procedural
due process which individuals held as the subjects of a rule of law.
Indeed, he charged that the integrity of these procedural rights had
become endangered by the assumption by modern governments of
corporate responsibility for the promotion of social justice.
Unlike Oakeshott, Rawls was dear that the egalitarian strategies
of public welfare provision and limited state regulation of the
economy - at least in the form licensed by the second principle of
justice as fairness- involved no necessary threat to the moral and
political rights which individuals were granted under the terms of
102 The Defence of Natural Law

the liberal constitution. To be sure, Rawls did recommend that


deliberation about legislation for the implementation of public
policy should be guided by the two principles of justice as fair-
ness, with the second principle directing legislators and other
officials to seek to promote overall fairness in the distribution of
substantive goods within society. However, he also insisted that
such deliberation was always to be conducted in the context of
rules, institutions and procedures which guaranteed the inviolabil-
ity of the individual rights affirmed in the first principle of justice.
For example, Rawls gave full recognition to the formal rights
secured by the procedural principles of justice as regularity, like the
right of an accused person to be heard in his own defence. No less
than Fuller and Oakeshott, he confirmed that the moral and
political freedom of the individual was impaired by any infringe-
ments of the principles of legal justice. Of course, Oakeshott
differed from Rawls in asserting a tension between the procedural
morality of law and the principles of constitutional democracy. Not
only did he challenge the Rawlsian assumption that the right of
viable democratic participation in the political process should rank
as a compelling requirement of justice. He also denied that the
legitimacy of the modern democratic constitution derived from any
likelihood that its institutional procedures would actually promote
the set of egalitarian rights which Rawls believed to be fundamental
to the objective realization of distributive justice. As he concluded
in 'The Rule of Law', the constitutional form of a government,
democratic or otherwise, implied 'nothing whatever about the jus or
injus of its enactments'.54 Rawls, however, insisted that the princi-
ples of justice as fairness provided criteria for assessing the
legitimacy not only of the procedures for political decision adopted
under a particular form of constitution, but also of the actual
content of the body of enacted legislation which was the outcome
of these procedures. In its representative form, constitutional
democracy satisfied the first principle of justice by defining a just
procedure for statutory legislation which respected all the basic
political liberties essential to equal citizenship, like freedom of
assembly and religious confession, in addition to enshrining the
institutionally defined right of all citizens to influence the outcome
of official deliberation about the direction of public policy. The
constitution of representative democracy also honoured the second
principle of fairness, Rawls argued, in the crucial regard that its
The Philosophy of Liberal Conservatism 103

procedures were more likely than those of any other form of


constitution to result in 'a just and effective system of legislation'.55
Nevertheless, Rawls did not prescribe a narrowly majoritarian
doctrine of political legitimacy. First and foremost, he emphasized
that the elective offices of a community were legitimated by the
irreducibly non-majoritarian principles of political morality which
grounded the individual rights enshrined in the liberal constitution.
Measures designed to promote social and economic equality, he
claimed, had always to be promulgated by the state through some
act of legislation that accorded with the formal separation of powers
and the other principles of constitutionalism - like the precepts of
procedural legal morality and the convention of judicial indepen-
dence - which were themselves requirements of the first principle
of justice as fairness. These principles of constitutional rule served
both to circumscribe the scope of the right of democratic participa-
tion, and to constrain the political majority in the formulation and
enforcement of the policies which expressed its collective interests.
Secondly, Rawls maintained that the requirements of justice as
fairness underwrote the prima facie right of individual citizens to
disobey the law, even in the circumstances of a society ordered by
democratic institutions of government. This right was permissibly
exercised by the individual citizen, Rawls suggested, in a refusal to
comply with legislation which set aside the basic liberties specified
in the liberal constitution, or which seriously diminished the level of
equality in distribution demanded under the second principle of
justice as fairness.
Above all, Rawls insisted that the two principles of justice stood
in a relationship of lexical or serial priority. Under the terms of this
relationship, the first principle of justice - specifying the basic rights
and liberties of the individual - took absolute precedence over the
second principle, which described the conditions for maximum
fairness in the allocation of social and economic goods. Rawls
claimed that the lexical ordering of the principles of justice as
fairness gave meaning to the foundational idea of political morality
that the basic political liberties could be validly 'restricted only for
the sake of liberty itself. 56 In defending this idea, however, Rawls
effectively denied legitimacy to any policies of state which deman-
ded the sacrifice of basic individual rights and liberties - even when
such policies worked to achieve greater fairness in the distribution
of goods in the political community.
104 The Defence of Natural Law

Oakeshott and Rawls, then, were equally determined to defend


the liberal constitution, as a form of political organization, and the
normative primacy of the individual rights internal to its structure.
Of course, Oakeshott and Rawls remained divided on important
questions concerning the best interpretation of the political morality
which underlay the tradition of liberal constitutionalism. Specific-
ally, Oakeshott adhered to the negative, or passive, conception of
individual political freedom favoured by the classical theorists of
liberalism. Hence, in the Introduction to Leviathan, he stressed that
Hobbes had construed the obligation imposed by the rule of law as
an essentially external impediment, which involved a diminution of
the liberty of the civil subject with regard to 'both his right and his
power to act' .57 Likewise, in On Human Conduct, he argued that the
early philosophers of liberalism had characteristically identified
civil liberty with the constitutional guarantee of certain basic
natural rights, which afforded the individual citizen protection
against 'the menace of "sovereign" authority'. However, he in-
sisted that this tradition of liberalism had been perverted by later
theorists, as the natural rights of the individual came to be under-
stood as entitlements to substantive benefits, which, like education
and employment, were 'capable of being assured only in the
exercise of lordship'.58
In contrast to Oakeshott, Rawls adhered to the positive, or active,
conception of political freedom associated with the work of
philosophers like Rousseau and Hegel. In the last resort, Rawls
recognized no real opposition between the constitutionally defined
rights that individuals held against the state, as under the first
principle of justice as fairness, and the duty of a government to
implement policies that engineered a more equitable organization
of the concrete social and economic order in which, for Rawls, all
moral and political rights were ultimately to be exercised. Indeed,
Rawls implied that the legitimacy of such egalitarian policies was
rooted in the same interlocking principles of justice that generated
the normative authority of those provisions of the liberal constitu-
tion which, like the provisions detailing the basic civil rights of the
individual, were intended to limit the state in the exercise of the
powers essential to its own sovereignty.
Nevertheless, despite their different interpretations of the char-
acter of the liberal constitution, Oakeshott and Rawls were united in
endorsing liberalism as a philosophy of government. In A Theory of
Justice, Rawls sought to apply the procedures in political philosophy
The Philosophy of Liberal Conservatism 105

constructed by the great social contract theorists like Hobbes and


Locke. Yet in doing so, he betrayed his adherence to precisely the
moral, political and metaphysical ideas which Oakeshott, in the
Introduction to Leviathan, had taken to mark out the philosophy of
modem liberalism from the classical and medieval philosophy of
natural law.
Although he adopted the idiom of the social contract, Rawls
denied that the authority exercised by the institutions of the modem
state derived from an explicit promissory act or undertaking on the
part of its subjects. For Rawls, the specifically moral obligation to
support such institutions was a natural duty, which arose directly
from the background principles of justice as fairness. Provided that
the legal system and office of government of a given political
community conformed to the principles of fairness, and provided
further that the subjects of these political arrangements willingly
enjoyed the social and economic advantages of the community so
constituted, then, Rawls held, its state institutions were entitled to
enforce the general obligation of compliance with the rule of law,
irrespective of the express consent or voluntary agreement of the
citizen. As a result, Rawls did not take the idea of the social contract
to refer to an actual historical agreement. Instead, he viewed the
basic principles of political association - that is, the principles of
justice as fairness - as the product of a hypothetical agreement
occurring in a so-called original position. In this original position,
rational but self-interested agents were conceived as establishing
fundamental principles of political morality from behind a veil of
ignorance, which concealed from these agents certain empirical facts
about themselves and their society. Crucially, no party to the
original position was assumed to know 'his place in society, his
class position or social status', 'his fortune in the distribution of
natural assets and abilities, his intelligence and strength', 'his
conception of the good, the particulars of his rational plan of life',
or 'the special features of his psychology such as his aversion to risk
or liability to optimism or pessimism'. The parties to the original
position were also assumed not to know the particular circum-
stances of their own society, like its 'economic or political situation'
or its 'level of civilization and culture'.59 For Rawls, the restrictions
imposed by the veil of ignorance upon this type of factual
information worked to ensure that the principles of political
morality chosen in the original position would possess a universal
authority- in the sense that the normative force of such principles
106 The Defence of Natural Law

would not be contingent upon their relation to the conventional


political and economic arrangements of any given human commun-
ity at some specific stage in its historical development.
The characterization of the original position in A Theory of Justice
confirmed the close relationship which Rawls wished to establish
between the concept of justice and the moral-political ideal of
equality. The original position described a situation in which the
parties were equally represented as moral persons, whose deliber-
ations remained unaffected by the arbitrary contingencies of
personal attachments and interests, or by the relative balance of
social forces. Indeed, the constraints on practical reasoning estab-
lished by the veil of ignorance guaranteed that the principles of
political morality selected in the original position would be
grounded directly in the bare capacity for moral personality of its
parties: that is, in their metaphysical status as beings who were
capable of entertaining 'a conception of their good', and of having 'a
sense of justice, a normall~ effective desire to apply and to act upon
the principles of justice'. In this way, the characterization of the
original position revealed the presupposed foundations for the
normative authority of the two principles of justice as fairness.
The constraints on rational deliberation essential to the idea of the
veil of ignorance explained why the parties to the original position
would choose a basic political constitution which fulfilled the
requirement of equal liberty. These constraints also explained
why the parties would choose an economic system that satisfied
the requirements of the difference principle. This was so because
the difference principle provided that the distribution of social and
economic advantages within society should not depend decisively
upon factors, like natural talents or inherited wealth, which were
'arbitrary from a moral point of view'. 61
Rawls considered that the theory of justice as fairness gave
support to the ruling ideas of the moral philosophy of Kant. It
had been Kant's purpose to show that the objective necessity of
human morality was presupposed by what he regarded as the
essentially imperative structure of practical deliberation. This was
why, in the Foundations of the Metaphysics of Morals and the Critique of
Practical Reason, he drew a fundamental contrast between the logical
properties of what he called the hypothetical imperative and the
logical properties that distinguished the categorical imperative. For
Kant, a hypothetical imperative was a prudential maxim that set out
The Philosophy of Liberal Conservatism 107

a course of action instrumental to the satisfaction of the wants and


desires of the agent. The categorical imperative, however, was an
injunction which addressed itself directly to the rational nature of
the human agent, and which, in doing so, possessed a normative
force that remained independent of the agent's material wants and
desires. Kant was convinced that the categorical imperative lay at
the heart of all human morality, and, further, that analysis of its
logical properties would suffice to identify the supreme principle of
human virtue as the good will: that is, the bare disposition of the
agent to act in compliance with the moral law merely for the sake of
duty, irrespective of his personal inclination or advantage. This
disposition of good will Kant distinguished from certain naturalis-
tically or socially defined human attributes, like health, intelligence,
wealth and status, as well as from all motives to action, like
benevolence or sympathy, which were rooted in the empirical
condition of the agent.
Kant went on to claim that the inner logic of the categorical
imperative generated a first principle of morality, which con-
strained the agent to act only in accordance with a practical maxim
that could be willed as a universal law applicable to the entire class
of rational beings. This procedural constraint of universalizability
gave rise to a second principle implicit in the categorical imperative:
namely, that the human agent was entitled to respect as an end in
himself, and was, in consequence, morally bound to treat humanity
at large always as an end, and never as a means only. In turn, this basic
duty of respect suggested the third principle of morality implied by
the categorical imperative. Under this principle, the agent was
required to exercise his faculty of sovereign legislation on the
assumption that he belonged to an ideal community of rational
beings, or, in Kant's own words, to a kingdom of ends.
The theory of the categorical imperative is of cardinal importance
in the history of ethics - primarily because of the internal connec-
tion which Kant took the theory to establish between the concept of
morality and the ideals of individual freedom and human equality.
Philosophers in the classical tradition, like Plato and Aristotle, had
sought to derive the content of morality from some empirically
determinate conception of the goods and values that conduced to
the full realization and perfection of human nature. From the
standpoint of Kantian ethics, however, the teleological idiom of
morality - particularly in the form in which Plato and Aristotle had
108 The Defence of Natural Law

introduced it into moral philosophy - failed to honour the ideas of


freedom and equality that Kant viewed as intrinsic to the concept of
a universal moral law.
Reflection on the categorical imperative led Kant to claim that the
very possibility of human morality depended upon the presupposi-
tion of the autonomy of the will - a metaphysical presupposition
which had no exact equivalent in classical ethics. For Kant, the
metaphysical presupposition of the autonomy of the will was
essential to the possibility of a procedure of practical deliberation
under which the agent could regard himself as obeying a law that
originated solely in his own reason, and, hence, that made no
reference to the agent's material wants or desires, or to any other
features of his empirically determined condition. Indeed, in Kant's
view, the rational autonomy of the person stood as the ultimate
metaphysical ground for the possibility of the objective determina-
tion of a universally binding moral law: that is, a law which
assumed as its foundation no attribute or interest of the agent
other than his bare capacity for good will. It was in this sense that
the metaphysical idea of rational autonomy gave meaning to Kant's
ethical conception of complete equality between moral agents as
members of a kingdom of ends.
The formal principles of practical reason essential to the idea of
the categorical imperative were taken by Kant to underpin many of
the substantive requirements of conventional morality. In this
connection, Kant's arguments have been seen as a powerful
corrective to the claim of the classical utilitarian philosophers that
the content of conventional morality could be justified only through
consideration of its instrumental contribution to human welfare and
happiness. More strongly, the theory of the categorical imperative
has been regarded as offering perhaps the most intellectually
compelling rationalization of the intuitive belief in the primacy of
individual human rights which has distinguished the tradition of
modern liberalism.
Indeed, The Metaphysical Elements of Justice, which Kant wrote as
the first part of The Metaphysics of Morals (1797),62 represented a
culmination of the philosophy of natural right initiated by Hobbes
and Spinoza - the philosophical tradition which Oakeshott showed
had generated many of the ideas integral to the political morality of
modern liberalism. In The Metaphysical Elements of Justice, Kant
showed how the categorical imperative underwrote the so-called
innate right of each individual agent to enjoy whatever measure of
The Philosophy of Liberal Conservatism 109

personal freedom was compatible with the freedom of every other


human being in accordance with a universal law. This innate right
to freedom gave rise to a foundational principle of political morality
which Kant termed the universal principle of justice. Kant went on to
argue that the universal principle of justice grounded the legitimacy
of the formal principles of institutional design - like the separation
of official powers and the right of the individual citizen to equal
treatment under the law - which he believed to be essential to the
ideal of the constitutional state or, in Kant's own words, to the ideal
of the state subject to a republican constitution. For Kant, such a state
fu1filled the terms of the universal principle of justice because its
institutional structure respected the moral autonomy of the individ-
ual person. This was so, he argued, by virtue of the fact that the
constitutional state embodied conditions of political association
which did not discriminate between the different substantive moral
ends and purposes of its various subjects.
In A Theory of Justice, Rawls adhered closely to the ethos of
Kantian liberalism. Of course, Rawls differed from Kant to the
extent that the fiction of the original position was intended to
show that principles of political morality could be determined
through a method of practical deliberation which remained essen-
tially prudential in character. In fact, Rawls looked back to the
empiricist tradition of Hobbes and Hume, in the respect that he
tried to derive normative principles of justice from first principles of
political association which he believed would be acceptable to
rational, self-interested agents conceived as standing outside any
pre-existing moral or legal relationship. Nonetheless, Rawls was
emphatic that the idea of the original position offered a procedural
interpretation of two key elements of Kantian ethics. First, the
specification of the original position confirmed Kant's conviction
that morality should be based in the autonomous nature of the
human agent. Second, the original position satisfied Kant's demand
that fundamental principles of justice and morality should conform
to the methodological constraint of universalizability: that is, the
constraint which required that principles of justice and morality
should always be prescribed in the form of the categorical impera-
tive, and so proceed from fully objective judgments about the
reality of a universal moral law that was acknowledged to be
equally binding upon all rational beings, whatever their personal
and social attachments or interests, or their individual conceptions
of the good.
110 The Defence of Natural Law

The Kantian character that Rawls ascribed to the original position


has led some commentators, most notably Michael J. Sandel in his
Liberalism and the Limits of Justice,63 to conclude that the principles of
justice as fairness comprised a deontological theory of political
morality. Rawls adhered to the strategies of I<antian ethics, Sandel
argued, because he affirmed that the moral and metaphysical
standing of the rights secured by justice was such that these rights
were not taken to presuppose any antecedent determination of
ultimate human goods and values as a basis for their derivation.
The deontological interpretation of A Theory of Justice stands
confirmed, as Sandel brought out, by Rawls's claim that, in
determining the principles of justice as fairness, the concept of
right should be assumed to be prior to that of the good. The primacy
that Rawls assigned to the concept of right was reflected, particu-
larly, in the fundamental contrast which he asserted between the
idea of justice underlying the principles of fairness and the view of
justice implicit in the political morality of utilitarianism. The
classical utilitarians, Rawls argued, had generally sought to justify
the normative status of individual rights and liberties in terms of
their contribution to the collective good of society - where the good
of society was quantified as 'the greatest net balance of satisfaction
summed over all the individuals belonging to it'.M In doing this,
however, the utilitarians had not allowed for any principled
distribution of social goods among different individuals. Indeed,
Rawls stressed that the utilitarians had accepted that the rights of
certain individuals might be violated, or their welfare diminished,
if this advanced the collective social good. The requirements of
justice as fairness, on the other hand, were so ordered that they
neither specified 'the good independently from the right', nor
interpreted 'the right as maximizing the good'.65 Hence, the
requirements of fairness provided a basis for the equal distribution
of rights among individual persons. It was in this sense that, for
Rawls, the principles of justice as fairness made possible the
formulation of a normative theory of rights, in which it was
recognized that the individual person possessed 'an inviolability
founded on justice that even the welfare of society as a whole
[could not] override'.66
In arguing for the priority of the concept of right, Rawls did not
mean merely to exclude utilitarianism as a theory of political
morality. More strongly, he insisted that the egalitarian require-
ments of fairness told against any teleological system of ethics in
The Philosophy of Liberal Conservatism 111

which principles of right and justice were derived from a restrictive


specification of human nature and its constitutive goods and values.
To this extent, Rawls repudiated not only the naturalistic idiom in
ethics generally, but also the methods in the moral and political
sciences developed by the classical and medieval philosophers of
natural law. In particular, he rejected the principle of perfection
which, in one form or another, theorists like Plato, Aristotle and
Aquinas had adopted as a basis for the moral justification of the
state. This disavowal of the principle of perfection as a basis for the
justification of the authority of the state testified to Rawls's
remoteness from the moral and metaphysical viewpoints that
distinguished the classical and medieval world - a remoteness
which served to locate him squarely with Oakeshott in the
tradition of modem liberalism.
The assumed metaphysical priority of the concept of the right
over that of the good was crucial to the coherence of the theory of
justice as fairness, considered in its status as an interpretation of the
political morality of liberalism. This conceptual priority underwrote
the normative force of the basic individual liberties enshrined in the
liberal constitution, and was itself guaranteed by the lexical
relationship which Rawls took to obtain between the first and
second principles of justice. Above all, the priority of right was
built into the structure of the original position in which the
principles of justice as fairness were first determined and estab-
lished. The original position was so structured that the parties to it
were bound to consent to principles of justice without privileged
information as to the particular conceptions of the good which they
would eventually adopt within organized society. Accordingly,
under the terms of what Rawls called the thin theory of the good,
the parties to the original position were directed to select principles
of political morality which maximized the opportunity for each to
exercise freedom in the choice of final moral ends. In this way,
Rawls suggested, the thin theory of the good compelled the parties
to the original position to construct principles of justice appropriate
to the regulative ideal of the well-ordered society: that is, a society
whose framework of laws and political institutions provided
conditions for the objective realization of the essential unity of the
self through which the human agent expressed his nature as a free
and equal moral person.
In A Theory of Justice, the ideal of the well-ordered society
functioned as a utopian schematization of the political arrange-
112 The Defence of Natural Law

ments adopted within modem liberal society. In elaborating this


ideal, Rawls stipulated that the well-ordered society should be
governed by publicly endorsed standards of justice, which were
capable of surviving the critical scrutiny of its members and, hence,
of commanding their rational acceptance. This stipulation comple-
mented Rawls's insistence that the law and constitution of the
modem state should not discriminate arbitrarily between the rival
moral aspirations of its subjects, or between their rival under-
standings of the human good. Indeed, as Rawls characterized it,
the constraint of publicity represented an application to the political
sphere of precisely the Kantian procedures in ethics which struc-
tured his entire methodological strategy in the formulation of the
theory of justice as fairness.
Rawls recognized that the principles of justice as fairness implied
a certain conception of human goodness - a recognition that carried
with it perhaps fatal consequences for the universality which he
sought to attribute to his specification of the requirements of
fairness. In fact, in the concluding chapters of A Theory of Justice,
Rawls progressed to a full theory of the good, in which he defended
the moral idea of goodness as rationality. In describing this idea,
Rawls argued that the supreme good of the individual consisted in
the successful execution of a rational plan of life. He also claimed that
the idea of goodness as rationality yielded a specific normative
principle of practical deliberation - the so-called Aristotelian
principle. According to the Aristotelian principle, the final ends of
human flourishing were identified with the active exercise by the
agent of his own individuating talents and abilities. In this way, the
Aristotelian principle clarified the intimate connection - as assumed
in the Platonic-Aristotelian tradition - between the notion of
goodness as rationality and the possession by the individual
person of those moral and intellectual virtues whose exercise
conduced to the preservation of his self-esteem and self-respect.
Rawls emphasized that the successful execution of a rational plan
of life by the individual person depended upon his participation in
the various associations and communities which comprised civil
society. The public vindication of the principles of justice as
fairness, Rawls maintained, was essential to the forging of the
deep-rooted bonds of social union which conferred a concrete moral
authority upon the formal institutions of law and state. Indeed, he
expressly commended the principles of justice as fairness for the
communitarian legitimacy which they lent to the political organiza-
The Philosophy of Liberal Conservatism 113

tion of modem liberal society. Not only was the public realization of
justice itseH a good of community. For Rawls, the principles of
justice as fairness were themselves rooted in the natural disposition
of human beings to perceive their common practices and institu-
tions as embodying intrinsic, rather than merely instrumental,
values of political morality. It was in this respect that Rawls took
the principles of fairness to promote the civic virtue of fraternity
within the well-ordered society, while also encouraging the inculca-
tion of the sense of justice from which individual citizens could come
to act in a shared allegiance to the publicly defined standards of
political morality inherent in the legal and economic arrangements
of their community.
Rawls's adherence to a political morality of communitarianism
marked out a broad agenda of substantive disagreements between
himseH and Oakeshott. These disagreements touched on a wide
range of matters central to political philosophy, including: the
extent to which the rule of law in modern society presupposes an
underlying public consensus on fundamental issues of justice and
political morality; the respects in which the formal equality secured
by the principles of legal justice is, and is not, competitive with the
material equality demanded by the principles of distributive justice;
the degree to which a modern government is required to take up
extensive interventionist responsibilities, in order to preserve the
integrity of the institutions of liberal society, and to safeguard the
individual rights implied by the idea of justice; the respects in
which a liberal society embodies publicly defined goods and values
very much more substantial than those necessary for the bare
maintenance of a legal system; and, crucially, the relationship, if
any, between the implementation of policies of state designed to
achieve greater distributive justice in the economic structure of
society and the meaningful enjoyment by the citizen of the
personal self-esteem which is vital to the reality of individual
freedom. However, although important, these disagreements be-
tween Rawls and Oakeshott really comprised a debate about the
meaning of the political morality of liberalism - a debate which, in
itself, called into question neither the desirability, nor the plausi-
bility, of liberalism as a philosophy of law and government.
Rawls's defence of the values of community placed him firmly in
the tradition in political philosophy of Rousseau, Hegel and the
Anglo-Saxon idealists. Indeed, A Theory of Justice made clear the
resources of this supposedly proto-totalitarian tradition of political
114 The Defence of Natural Law

thought for significantly enlarging the standard terms of debate


about the possibilities of legitimate state action within a society
governed by liberal institutions. However, despite the depth of his
political communitarianism, Rawls still strenuously denied that the
rights guaranteed the individual citizen under the principles of
justice as fairness were compatible with any form of political
organization more comprehensive than that provided for by the
liberal constitution. No less than Oakeshott, he emphasized that the
principles of liberal constitutionalism cut against both the confes-
sional state and the ideal of an omnicompetent laicist state. Even
more radically, he excluded - as did Oakeshott - the coercive
enforcement of social morality by the state, whenever this dimin-
ished individual freedom in the choice and pursuit of ultimate
moral or cultural ends. In all these respects, Rawls's commitment to
the political morality of liberalism should be recognized as the
proper context for evaluating his differences, not only with Oake-
shott, but also with Robert Nozick.

iii. THE LffiERAL THEORY OF JUSTICE:


OAKESHOTI AND NOZICK

Nozick published Anarchy, State, and Utopia 67 in 1974, and much of


the book was written in direct response to A Theory of Justice. In
common with Rawls, Nozick derived the foundational principles of
justice from a specification of the moral and political rights
supposedly held by the individual. However, Nozick did not seek
to defend the complex system of constitutional liberties and welfare
rights which Rawls identified as the main political desideratum of
the liberal theory of justice. Instead, he defended the political and
economic arrangements of modem capitalist society by means of a
restatement of the theory of justice, rights, private property and
civil government which Locke provided in his Two Treatises of
Government (1690).68
In the Two Treatises of Government, Locke took over from Hobbes
the idea of an original social contract, or compact, as a basis for the
explanation of the legitimacy of civil government. Unlike his
predecessor, however, Locke assumed that the concept of law had
application both to the state of nature and to the condition of civil
society. As did earlier theorists, such as Aquinas and Hooker, Locke
The Philosophy of Liberal Conservatism 115

believed that the law of nature comprised a set of rationally binding


moral rules - although he differed from Aquinas and Hooker in
emphasizing that the law of nature prescribed certain inalienable
rights of the individual. These rights included the rights to life,
liberty and property, together with a basic right of self-defence,
which Locke interpreted as the right of the individual to punish
transgressions of the natural law. For Locke, the natural rights of
the individual were metaphysically independent of any particular
social order, and so possessed a normative validity that was distinct
from the kind of validity attaching to the conventional systems of
positive law in which these rights received concrete recognition
within actual political communities. Indeed, he held that the office
of civil government was instituted with the express purpose of
giving effect to the natural rights of the individual through
procedures of legislation, adjudication and executive rule. This
defining purpose, or task, of political society itself determined the
legitimate powers and authority of civil government - with the
consequence that Locke insisted that citizens were entitled in justice
to resist any government which violated the moral rights under-
written by the natural law.
In Anarchy, State, and Utopia, Nozick followed Locke in postulat-
ing the existence of a prescriptive natural law, which was under-
stood to guarantee the individual rights to life, liberty and property,
and to sanction the additional right of the individual person to
punish unilaterally any infringements of these basic moral rights.
Nozick concluded, moreover, that the normative integrity of the
rights enshrined in this natural law could be preserved only in the
circumstances of the minimal or night-watchman state of classical
liberal philosophy: that is, a state limited to 'the functions of
protecting all its citizens against violence, theft, and fraud, and to
the enforcement of contracts'. 69
In contrast to Rawls, then, Nozick denied that the state was
permitted to pursue public policies of wealth redistribution when-
ever these were intended to engineer a predetermined pattern in the
allocation of economic goods and social opportunities within the
political community. For Nozick, the enforcement of such redis-
tributive programmes compelled the state to adopt interventionist
powers that inevitably violated the individual rights which were the
source of all political legitimacy. This was so, he maintained,
because the exercise of these powers always entailed coercive
interference by the state in the voluntary relationships which
116 The Defence of Natural Law

constituted civil society, threatening especially the rights to the


ownership and inheritance of private property that organized the
institution of the family.
Nozick's anti-statist convictions did not mean that he offered no
theoretical analysis of the idea of distributive justice. No less than
Rawls, Nozick provided a highly sophisticated exposition of the
requirements of distributive justice. However, whereas Rawls
associated the idea of distributive justice with principles of equality
and fairness that applied to the structure of society as a whole,
Nozick defended an essentially historical theory of distributive
justice, which concentrated upon the legitimate expectations of
individuals engendered by the free exercise of their moral and
political rights. In propounding this theory of just entitlement,
Nozick laid down certain formal principles of justice in acquisition,
which defined the conditions for the valid appropriation of private
property, together with principles of justice in transfer, which
determined the procedures governing all voluntary transactions
between individual agents involving the exchange of property.
Nozick considered that the principles of acquisition and transfer
exhausted the moral requirements of distributive justice. Unlike
Rawls, then, Nozick made no a priori presumption in favour of an
egalitarian model of distributive fairness. In consequence, he was
driven to accept the justice of vastly unequal allocations of wealth,
property and social advantage within society. This followed
because he insisted that the distribution of economic holdings and
assets within a given society was legitimate solely to the extent that
the distribution satisfied the principles of justice in acquisition and
transfer which identified the real entitlements of individuals to such
holdings and assets.
Throughout Anarchy, State, and Utopia, Nozick attached special
importance to the distinction between the entitlement theory of
justice and those theories, like Rawls's, which focused upon the end-
result, or end-state, of complex systems of economic production and
distribution. It was the great virtue of the entitlement theory, he
submitted, that it related all questions regarding the legitimate
distribution of social and economic goods to the historical circum-
stances of their generation. In this way, the entitlement theory of
justice underscored the moral supremacy of those rights of the
individual which were directly at stake in the processes of
exchange, transaction and economic c<H>peration by which wealth
was actually created and distributed within society.
The Philosophy of Liberal Conservatism 117

Like Rawls, Nozick endorsed the ideas central to the I<antian


conception of rights. He affirmed that individual persons should be
treated as ends rather than as means, with the implication that their
rights were not to be overridden so as to promote an 'overall social
good'.7° To this extent, Nozick shared Rawls's conviction that the
normative inviolability of individual rights could not be reliably
secured by the political morality of utilitarianism. At the same time,
though, he went on to allege that the principles of justice as fairness
reproduced the major weaknesses of utilitarianism as a theory of
individual rights. Rawls, he claimed, had not satisfactorily ex-
plained why the rights supposedly held by the individual could
not be legitimately sacrificed in order to achieve maximum equality
in the distribution of material goods. This failure arose, he
suggested, from Rawls's determination to derive morally binding
principles of justice from an analysis of the macroeconomic structure
of society. As a result, Rawls had fatally dissociated the concept of
justice from the concrete moral rights and duties which had their
origins and life in the myriad relationships forged between actual
persons in the microeconomic sphere of society. It was in these terms
that Nozick insinuated the intuitive injustice of programmes of
reverse discrimination, and denounced policies of redistributive
taxation as the moral equivalent of 'forced labor'. 71
Published in successive years in the mid-1970s, Anarchy, State, and
Utopia and On Human Conduct invite detailed comparison with each
other. Perhaps inevitably, Nozick's ideal of the minimal state and
Oakeshott's vision of the state as a civil association will be ranked
as signal contributions to the resurgence of the ideology of liberal
conservatism which distinguished the theory and practice of
politics in the West during the 1980s. Yet it would betray a
considerable want of subtlety to assume that Nozick and Oakeshott
were bound together by any very strict identity of purpose or
concern.
Nozick was an ideologically strident exponent of the philosophy
of liberal rationalism which Oakeshott pointedly repudiated from
the perspective of the radical historical scepticism taken up in
Rationalism in Politics. Indeed, Nozick attempted to reconstruct the
principles of political legitimacy formulated by Locke, a theorist
whom Oakeshott regarded as representative of precisely those
mentalities of the modern Enlightenment which had worked to
deprive contemporary institutions of government of their moral
authority. Again, Nozick wrote in an American context, whereas
118 The Defence of Natural Law

Oakeshott's preoccupations were predominantly European. In


consequence, Nozick did not engage with the crucial historical
question of the relationship between the emergence of the liberal
tradition in modem politics and the fragmentation of medieval
Christendom - a theme that was central to On Hutnlln Conduct.
Instead, Nozick tended to imply the centrality of the connection
between liberalism and the development of modem laissez-faire
capitalism. Thus, while Oakeshott was concerned with the formal
requirements of natural justice that organized the procedural
morality of law, Nozick's interests lay with the structure of those
political institutions which made possible the exercise by the
individual of the rights to private property and freedom of contract
that were integral to the effective organization of the free market
economy.
These differences between Oakeshott and Nozick reflected the
profound divergence in the interpretation of the morality of liberal
constitutionalism which marked off the philosophy of Hobbes from
that of Locke. On Hutnlln Conduct was ultimately a Hobbesian
argument about the character of the sovereign rights inherent in
the office of civil government of a modem European state. Anarchy,
State, and Utopia, however, was primarily a Lockean argument about
the office of civil government most appropriate to the defence of
private property. Accordingly, Nozick identified the essential
reality of the modem state with the institutions of executive power
necessary for the protection of the individual's rights to life, liberty
and property - where these basic rights were understood to be
grounded in a normatively binding natural law which was at once
antecedent to all positive law and the precondition of any legitimate
act of state.
In Anarchy, State, and Utopia, Nozick insisted that the monopoly
on lawful coercive power vested in the executive institutions of the
state was generated through a voluntary surrender of the original
moral right by which individuals were entitled, under the terms of
the Lockean natural law, to inflict punitive sanctions for any
infringements of their rights to life, liberty and property. Nozick
went on to argue that the exercise of this monopoly by the state
presupposed that the state should possess not only 'the sole right to
pass on the legitimacy and permissibility of any use of force within
its boundaries', but also 'the right to punish all those who [violated]
its claimed monopoly'. 72 It was the prohibition upon the private
enforcement of moral rights essential to the effectiveness of a public
The Philosophy of Liberal Conservatism 119

monopoly on the means of lawful coercion, Noziclc concluded,


which alone justified the modem state in imposing whatever
measures of compulsory redistribution of personal property were
required to finance and maintain a civil administration that
afforded equal protection to all its subjects.
Unlike Nozick, Oakeshott did not assert the existence of a
prescriptive natural law which specified any legitimately enforce-
able moral or political rights - least of all a private right to punish
infringements of its own normative requirements. In fact, Oakeshott
contended that legitimately enforceable rights and obligations -
including presumably the rights of acquisition, exclusion and
contract that constituted the positive law of property - could come
into being only as a consequence of the institution of political society.
This was so because he followed Hobbes in assuming that the
distinctively legal rights and obligations adopted within a given
political society were either expressly created by the decisive
stipulations of its authorized office of legislation, or were embed-
ded in a law of custom that remained entirely subject to the
sovereign powers inherent in that office of legislation.
For Oakeshott, then, the fundamental structural principle of the
modern European state was to be identified not with its agencies of
executive rule, but with the sovereign authority embodied in its
office of legislation. It was for this reason that, in the article 'Talking
Politics', he rejected precisely the sort of theory of political society
which Nozick inherited from Locke. Under this conception of
political society, civil government existed merely to secure rights
which it had no authority to prescribe, and where the consent of its
subjects could legitimate 'nothing more than the apparatus of
power ... necessary to provide that security'. However, Oakeshott
complained that the office of government of a modern state was
misrepresented when characterized as 'the authorized custodian
and operator of an apparatus of power'. On the contrary, the office
of civil government was essentially that of 'a prescriber of rules of
conduct', in the sense that the existence of this legislative authority
was itself the precondition of any additional institutional right to
enforce compliance with the obligations specified in such rules. The
office of civil government could be identified with 'the exercise of
legitimate power', Oakeshott emphasized, only where there sur-
vived some belief that the normative status of the legal obligations
so enforced derived 'not ... from the authority of the office of rule
but from God or Nature'.73
120 The Defence of Natural Law

The disagreements between Oakeshott and Nozick were in some


respects extremely significant. For instance, it was notable that On
Human Conduct carried far fewer anti-redistributive implications
than Anarchy, State, and Utopia. This was so because Oakeshott
implied that the system of conventional property rights enforced
in any given society always remained liable to revision or modifica-
tion through the sovereign acts of its office of legislation. Never-
theless, Oakeshott and Nozick were united in endorsing the ideal of
limited government under the rule of law, particularly in the form
in which this ideal of political morality had been affirmed within
the great European-American tradition of liberalism. No less than
Nozick's model of the minimal state, Oakeshott's model of civil
association was constructed in such a way as to restrict the
legitimate tasks of civil government to 'the narrow functions of
protection against force, theft, fraud, [and] enforcement of con-
tracts'?'' Accordingly, both theorists assumed a fundamental dual-
ism between the rule of law, as enforced by a modern state, and the
social and economic order of the wider political community which
the law regulated. In doing so, the theorists further assumed that
the modern state was distinguished by its monopoly on the exercise
of all lawful force within a specified jurisdiction. Although the
theorists argued - somewhat problematically - that this particular
monopoly of the modern state did not necessarily violate the moral
rights of the individual person, they agreed that the collectivist
engagements of contemporary Western governments had resulted
in a morally indefensible concentration of coercive power in the
hands of the state. This, indeed, was why they were driven to
conclude that the procedural principles of legal or transactional
justice, rather than the teleocratic or end-state standards of dis-
tributive justice favoured by Rawls, provided the only real institu-
tional guarantee of the moral and political rights of the individual
citizen.
Above all, Oakeshott and Nozick were united in repudiating the
core principles of political morality adopted within the classical and
medieval traditions of natural law philosophy. Both theorists
absolutely excluded any teleological, or perfectionist, justification
of the authority of the state which implied that civil government
was permitted to enforce publicly defined virtues of citizenship
more substantial than those essential to the protection of individual
rights under the rule of law. To this extent, neither theorist seriously
challenged Rawls's basic assumption of the priority of the right over
The Philosophy of Liberal Conservatism 121

the good in the hierarchy of moral-political concepts. Indeed, the


foundational ethical presuppositions of the tradition of the state
understood as a societas remained wholly consistent with an idea
informing much of Nozick's reflection on the minimal state: name-
ly, the idea of the individual person finding the meaning of his life
through shaping his life in accordance with 'some overall concep-
tion of the life [he] wishes to lead'. 75
Oakeshott, then, stood together with Rawls and Nozick in his
adherence to the voluntarist analysis of law and obligation that ran
through the social contract tradition in political philosophy. How-
ever, the commitment to metaphysical voluntarism in the analysis
of the origins of political society did not only place Oakeshott with
theorists, like Rawls and Nozick, who affirmed the reality of
individual human rights in defiance of the ideological ascendancy
of utilitarianism. This commitment also served to align him with
those twentieth-century jurists, like H. L.A. Hart, who set out to
restate the tenets of the essentially utilitarian legal philosophy of
Bentham and Austin.

iv. OAKESHOTI, HART AND LEGAL POSITIVISM

Oakeshott decisively rejected the empiricist presuppositions in the


philosophy of mind that distinguished the Anglo-Saxon school of
legal positivism. Even so, the philosophical procedures of meta-
physical idealism that Oakeshott adopted in Experience and its Modes
did not suffice to establish a conceptual framework for the sort of
synthesis of the descriptive analysis of law with the normative
concerns of moral and political theory which had distinguished the
natural law tradition in legal philosophy. Indeed, in Experience and
its Modes, he characterized ethics, theology and political science as
forms of pseudo-philosophical experience. Philosophy proper, he
insisted, was a radically critical mode of intellectual enquiry, which
remained unlimited by the conditions of current usefulness that
governed consideration of theoretical questions pertaining to mor-
al, religious and political conduct.
Five years after Experience and its Modes, Oakeshott sought to
appraise the claims of legal science from the standpoint of philoso-
phy in an important article entitled 'The Concept of a Philosophical
Jurisprudence' (1938).16 In this article, Oakeshott called for the
formulation of a fully philosophical jurisprudence, which he hoped
122 The Defence of Natural lAw

would end the 'chaos' caused by the plurality of unrelated


explanations of law developed within the rival analytical, histor-
ical, psychological, economic and sociological schools of legal
theory. This chaos would be overcome, he argued, only by a
jurisprudence that brought the texts of legal thought into a
synthetic relationship with 'a universal, self-complete context' -a
context which, for Oakeshott, represented nothing less than the
critical perspective afforded by the 'totality of experience'?'
Nevertheless, the holistic approach towards the study of legal
phenomena, as proposed in 'The Concept of a Philosophical
Jurisprudence', did not prompt Oakeshott to develop a theory of
law adequate to the Hegelian definition of the state which he had
earlier formulated in 'The Authority of the State'. In general,
Oakeshott explored the formal structure of the rule of law without
regard to its relation to the wider context of society and economy.
He also sought to set out the basic procedural principles of legal
order without reference to any critical perspective which incorpo-
rated a fully ethical conception of human nature specifying the
moral goods and values actually promoted by law. Indeed, he
complained that most legal philosophy had been clouded by an
intrusion of the practical attitude essential to the standpoint of
morality and religion. It was no part of a genuinely philosophical
jurisprudence, he insisted, to evaluate 'the rightness or wrongness
of the legal arrangements of a society', or to determine the moral
goodness of law by reference to 'the needs of a society' or to some
'ideal and absolute standard of justice'.78 To this extent, Oakeshott
explicitly disavowed any juristic method which would end the
dissociation of legal analysis from ethics and normative political
philosophy that distinguished the positivist tradition of Bentham
and Austin.
Of course, there were very important senses in which Oakeshott
clearly intended to call into question the analytical model of law
constructed by Bentham and Austin: that is, the model of legal rules
as coercive commands issued by a law-making sovereign which
enjoyed the habitual obedience of its subjects. For example, in On
Human Conduct and later articles like 'The Rule of Law', Oakeshott
emphatically denied that the nature of legal rules could be properly
grasped through the analogy with commands or orders. A com-
mand or order, he maintained, was essentially 'an injunction to
perform a substantive action', and issued to 'an assignable agent' in
the context of 'a particular situation'. Rules, on the other hand,
The Philosophy of Liberal Conservatism 123

embodied formal or adverbilll conditions upon conduct, which did


not stipulate the performance of any specific substantive action, and
which were typically 'addressed to an unknown ... audience' .79
Oakeshott likewise denied that legal rules were authoritative by
virtue of the coercive sanctions attached to them, or on account of
the likelihood that such sanctions would be inflicted in the event of
a failure to comply with their provisions. Hence, he concluded that
it was entirely misleading to identify the general obligation of
compliance with law with 'a habit of obedience' on the part of its
subjects, or to suppose this duty to arise from their 'feeling of being
obliged or constrained' or from their 'fear of the penalties or
disabilities of non-subscription'. 80
In both the Introduction to Levillthan and On Human Conduct,
Oakeshott argued that philosophers like Bodin and Hobbes had
correctly recognized that the modern European state was distin-
guished as a form of political organization by reason of the
sovereign rights vested in its office of government. In this respect,
he agreed with Austin that the meaningful exercise of these
sovereign rights required that the state should possess legislative
competence over all subordinate law-making agencies within its
territory, and, further, that the state should be independent of the
jurisdiction of any external political superior. Unlike Austin,
however, he emphasized that the unconditional legislative author-
ity held by the modem sovereign state implied neither that its office
of government should be free from legal limitation, nor that this
office should be understood to exert an absolute power or force over
its subjects. Indeed, he was adamant that the office of government
of a modern state was constrained by principles of procedural
natural justice, where these principles were taken to guarantee
precisely the sort of internal connection between law and morality
that the mainstream positivist jurists had ruthlessly excluded from
their analysis of legal phenomena.
Nevertheless, it remains uncertain whether the modifications that
Oakeshott proposed to the imperative theory of law served
significantly to differentiate his own analysis of the modern legal
system from the restatement of the tenets of Austinian jurispru-
dence provided by Hart in The Concept of Law. In Hart's account of
it, legal positivism stood out as a philosophy of law which remained
deeply rooted in the moral and political values constitutive of
Enlightenment culture. In Law, Liberty, and Morality, for instance,
he defended the values of modern liberalism by appeal to the same
124 The Defence of Natural lAw

rationalist tradition of critical morality which Oakeshott, in 'The


Tower of Babel', considered to have subverted the moral and
cultural homogeneity of the historic European societies. Oakeshott
also diverged from the great positivist jurists, Hart included, in
believing the principles of procedural justice to secure an internal
relationship between the maintenance of a rule of law and the ends
of human morality. Far more than Hart, then, he was able to
recognize that the post-Benthamite predominance of statutory
legislation had menaced the values of legal morality, and, further,
that the utilitarian justification of civil government espoused by
Bentham and his positivist successors remained in permanent
conflict with certain morally compelling principles of justice that
structured the administration of law.
Despite these disagreements, however, both Oakeshott and Hart
owed allegiance to the tradition in political philosophy which ran
back from Bentham and Austin to Hobbes. In the Introduction to
Leviathan, Oakeshott claimed that Hobbes's civil philosophy reflec-
ted the transformation in the European intellectual consciousness
brought about not only by the rise of the modem inductive sciences,
but also by the abandonment of the teleological conception of
nature which had lent coherence to the great rational-natural
tradition of Aristotle and Aquinas. Throughout his subsequent
work, Oakeshott wrote in acceptance of the implications for
political philosophy of Hobbes's decisive rejection of the metaphy-
sical teleology underlying classical Aristotelianism. Indeed, he
everywhere affirmed the abiding relevance, for the analysis of
contemporary law and political institutions, of the concepts of will
and artifice whose formulation he regarded as having constituted
Hobbes's seminal contribution to the development of the modem
tradition in legal and political philosophy.
This is not to underestimate the overriding importance which
Oakeshott attached to the procedural morality of law as a normative
justification for the modem political order. In fact, in 'The Rule of
Law', Oakeshott argued that the principles of natural law that
Hobbes had taken to underlie civil government - the so-called
articles of peaceful association - actually represented 'an analytic
break-down' of the formal principles of legal justice, like the
prohibitions upon outlawry and retroactive legislation, which
pertained to 'the intrinsic character of law'.81 At the same time,
though, he denied that the authority of the modem rule of law
derived from its correspondence with the substantive requirements
The Philosophy of Liberal Conservatism 125

of natural law, or with any other non-legal standards of morality.


To this extent, he assumed much the same sort of contrast as that
asserted by the legal positivists between the criteria to be used in
determining the formal validity of law and those to be adopted for
the critical evaluation of its justice or morality. As he suggested in
'The Rule of Law', the whole integrity of the modem legal system
was conditional on the recognition of a clear distinction between the
idea of lex - namely, a rule of law 'understood in terms of its
authenticity' - and the idea of jus - that is, a rule of law 'understood
in terms of the "rightness" or "justice" of what it prescribes'. 82
Although pioneered by Bodin, Hobbes and Hegel, this view of the
character of the rule of law maintained by a modem European state,
he emphasized, had also been implicit in 'the reflections of many
so-called "positivist" modem jurists'.83
In all these respects, Oakeshott was closer to Hart than he was to
the Finnis of Natural Law and Natural Rights, the Fuller of The Law in
Quest of Itself, and the Dworkin of Taking Rights Seriously and Law's
Empire. Finnis explored the essential reality of law from the
philosophical standpoint of Thomism. In doing so, he made it
clear that the rational-natural tradition of Aristotle and Aquinas
remained equidistant from both the Hobbesian tradition of natural
right and the Austinian tradition of legal positivism. Fuller and
Dworkin challenged the conceptual assumptions of legal positivism
by attending to the purposive quality of the rule of law. The
purposive dimension of legal phenomena, they argued, implied
the necessity of synthesizing the descriptive analysis of modem law
with the critical evaluation of the normative principles of political
morality which rooted its legitimacy. Oakeshott, by contrast,
defined the essential reality of law independently of any appraisal
of the substantive moral purposes promoted through the main-
tenance of a legal system. Indeed, in On Human Conduct, he
contended that many legal theorists had misconceived the true
character of law precisely because of their concern with the
purpose of law. 84
According to Fuller, a purposive explanation of law was funda-
mental to any tenable analysis of the methods of judicial reasoning
which structured the procedure of civil adjudication. These meth-
ods directed the courts to decide so-called hard cases by interpret-
ing conventional sources of law in terms of the standards of legal
decency and political morality embodied in the traditions and
customs of the community at large. For Fuller (and Dworkin), the
126 The Defence of Natural Law

rights and duties enforced in hard cases were established as a


matter of judicial discovery, in the sense that these rights and duties
were taken by the courts to exist as part of the law prior to the
actual disputes which served as occasions for their determination.
However, Oakeshott explicitly rejected the metaphysical pre-
suppositions of legal naturalism which informed the model of
adjudication adopted by Fuller and Dworkin. Instead, he followed
Hobbes in exploring the character of law from the metaphysical
standpoint of philosophical voluntarism. He did so, in part, because
the voluntarist interpretation of legal reality preserved a strict
demarcation between law and society. For Oakeshott, the specifi-
cally legal rights and duties of a given political community were
always to be identified with those articulated in its strictly conven-
tional system of civil law. To this extent, he implied that the moral-
political ideal of legal certainty was dishonoured by any method of
adjudication which directed the courts to enforce rights and duties
that possessed no explicit warrant in pre-existing law.
In common with Fuller and Dworkin, Oakeshott regarded judicial
independence as a basic organizing principle of the morality of
constitutional rule. Nevertheless, it remained unclear whether the
principle of judicial independence could be properly vindicated in
terms of the voluntarist conception of law formulated by Hobbes.
This in fact was the conclusion of F. A. Hayek, a theorist whose legal
and political philosophy rested on an analysis of civil adjudication
which bore striking parallels with that offered by Fuller and
Dworkin.

v. HAYEK, OAKESHOTT AND UBERAUSM

Uke Fuller, Hayek believed that jurists in the tradition of legal


positivism had obscured the character of the internal relationship
between law and morality which secured the authority of the
modern political order. In challenging legal positivism, Hayek did
not seek to revive the natural law philosophy of Aristotle and
Aquinas. As much as Oakeshott, he identified the foundations of
political legitimacy with the principles of legal justice embodied in
the formal structure of the rule of law. These principles included the
requirements that legislation should be generally prospective in its
effect, that criminal punishment should be inflicted only in the
The Philosophy of Liberal Conservatism 127

event of proven infringements of established legal rules, and, above


all, that such rules should be binding upon both the officials and
subjects of a system of law.
In contrast to Oakeshott, however, Hayek emphasized that the
institutional values of legal justice had been threatened by the
ascription of unconditional sovereign rights to the office of govern-
ment of the modem European state. Indeed, he made it clear that
the political philosophy of Hobbes, which Oakeshott took to define
the basic principles of political legitimacy underlying the modem
state, had been continuous with precisely the post-Cartesian tradi-
tion of European rationalism that Oakeshott regarded as having
subverted the moral authority of the modem rule of law.
Hayek followed Fuller and Dworkin in regarding the principles
of legal morality as being underwritten by the procedures of civil
adjudication that distinguished the English common law tradition.
He stressed particularly that the private law established by the
English courts in accordance with these procedures had conformed
to the principles of legal morality far more faithfully than had the
various systems of statutory legislation created by the sovereign
law-making institutions of the modem European states. At the same
time, he maintained that the development of the procedures of
adjudication characteristic of the English common law tradition had
depended upon the existence of independent courts, which possessed
the right to review the acts of the legislative and executive
institutions of the state. In this way, he suggested, the common
law courts had been decisive in establishing the idea of the
separation of official powers as a fundamental principle of constit-
utional government.
Hayek also claimed that the common law courts had proved
notably successful in giving legal effect to the system of rights to
private property and freedom of contract which became entrenched
with the emergence of the market economy in England during the
eighteenth century. Indeed, Hayek insisted that the formal princi-
ples of the rule of law provided criteria for identifying the activities
of contemporary governments which remained consistent with the
normative concepts of justice and legitimacy specific to an economy
based in free market principles. It was for this reason that Hayek
considered the analysis of law and its internal morality to vindicate
the values of liberal conservatism which he took to have been
undermined by the drift towards economic collectivism during
the twentieth century.
128 The Defence of Natural Law

In The Road to Serfdom,85 the celebrated polemic first published in


1944, Hayek argued that Britain in the 1940s recalled the early years
of the Weimar Republic in the receptivity of its governing elites to
the moral and political ideas which had encouraged the establish-
ment of the totalitarian state in Soviet Russia, fascist Italy and Nazi
Germany. He warned, especially, that a momentum in favour of
totalitarianism was implicit in the commitment of the British Labour
Party to the perpetuation in peacetime of the forms of central
economic planning compelled by the exigencies of war. The
extension of political control demanded by a socialized economy,
Hayek predicted, would inevitably erode the system of individual
rights preserved under a stable rule of law, jeopardizing particu-
larly the popular consensus and widely spread distribution of
private property upon which, for him, the whole integrity of
constitutional democracy in Britain had been founded.
The main themes of the critique of socialism contained in The
Road to Serfdom were developed in the defence of the philosophy of
liberalism which HayekJ,rovided sixteen years later in The Con-
stitution of Liberty (1960). In its tum, this testament to the tradition
of liberal constitutionalism anticipated the comprehensive theory of
law, justice and political economy which Hayek expounded in the
three volumes published in the 1970s that were eventually repub-
lished in 1982 as a single volume under the title Law, Legislation and
Liberty:87 Rules and Order (1973);88 The Mirage of Socilll Justice (1976);89
The Political Order of a Free People (1979). 90
As did Oakeshott, Hayek set out a highly complex philosophical
justification for traditionalism as an attitude towards political
activity. In doing so, he urged that law and legal institutions
should be examined in their relation to the processes which
governed the evolution of the customary and tradition-based
practices embedded in actual historical communities. This essen-
tially evolutionary model of social explanation, he argued, had been
implicit in the moral and political philosophy of the medieval
schoolmen, and had later been revived in the eighteenth century
in the work of such thinkers as Mandeville, Hume, Adam Smith
and Burke. Nevertheless, Hayek emphasized that the evolutionary
approach towards law and society had been decisively abandoned
by the leading exponents of the tradition of philosophical rational-
ism which established itself in Europe during the sixteenth and
seventeenth centuries.
The Philosophy of Liberal Conservatism 129

Hayek agreed with Oakeshott that a proper understanding of the


first principles of human association had been prevented by the
dominance of Cartesian assumptions in the philosophy of mind.
According to Hayek, the theorists who adhered to the method of
intellectual enquiry of the type devised by Descartes had helped
propagate the errors of so-called constructivist rationalism - errors
which he believed to flaw most modem sociology and political
science. Theorists in the line of Descartes, he maintained, had
characteristically assumed either that basic forms of social, econom-
ic and political association could be consciously designed so as to
realize antecedently defined ends and objectives, or that these forms
of human association were always capable of being reconstructed in
such a way as to make them conform to some abstract specification
of their constitutive purposes.
Hayek complained that theorists in the Cartesian tradition had
either misconceived or ignored the particular form of human
rationality which guided the historical evolution of social practices
and public institutions. For Hayek, the modernistic indifference
towards the philosophical viewpoint of what he called evolutionary
rationalism was evidenced by the failure of philosophers after
Descartes to acknowledge crucial distinctions between two types
of human association. Rationalist philosophers, he argued, had
tended to focus exclusively upon forms of human association
which exhibited the properties of what he termed taxis: that is,
associations whose formal structure was dominated by elements of
made order. By the same token, the rationalists had neglected those
forms of human association that manifested the properties of what
he termed kosmos: that is, associations which were brought into
being through processes of evolution that distinguished these
associations as forms of grown or spontaneous order.
The contrast between taxis and kosmos as types of human
association was central to the theory of law and state which Hayek
defended in lAw, Legislation and Liberty. In this work, Hayek
accepted that the rationalist philosophers had convincingly identi-
fied the features of artifice and contrivance which characterized
deliberately constructed forms of human association. However, he
stressed that the organizational design of such associations was
usually supported by the containin~ framework of some 'more
comprehensive spontaneous order'.9 This was why he diverged
from Oakeshott in rejecting the voluntarist analysis of political
130 The Defence of Natural Law

obligation favoured by the great social contract theorists and by


jurists in the tradition of legal positivism. Indeed, for Hayek, the
model of the social contract, as formulated by Hobbes, embodied an
explanation of the origins of human society that reproduced, in the
context of political philosophy, the very illusions of constructivist
rationalism which he considered to have been fostered by the
epistemology developed by Descartes.
Hayek recognized that the law and constitution of the modern
state was, to a large degree, a formally constructed organization of
human society. Nevertheless, he charged that political theorists who
wrote from the viewpoint of constructivist rationalism had funda-
mentally misunderstood the nature of law. Jurists in the line of
Hobbes and Bentham, he argued, had viewed the modem legal
order as comprising a system of rules created by the enactments of
the sovereign law-making institutions of the political community.
However, Hayek denied that statutory legislation was the sole or
primary source of law within a modern state. For the most part, he
claimed, the law in Western societies had been developed by the
courts, through the continuous adjudication of disputes which often
exposed gaps in existing systems of statutory legislation. The legal
rules determined by judges in such cases did not owe their validity
to the decisions of the authorized office of legislation of their
particular community. Rather, the validity of these rules was
anchored in judicial deliberation about the meaning of legal norms
and moral standards embedded in the customary practices of that
community.
In these respects, Hayek concluded, the tradition of judge-made
law had been generated by the same underlying historical processes
which shaped the spontaneous formation of all social order. For
Hayek, the special normative authority attaching to judge-made law
derived from its conformity to the settled expectations of its subjects
- expectations which he believed to originate in the pre-legal
experience of society. Hayek contended that this feature of judge-
made law had been grasped by legal and political theorists, like
Coke, Burke, Savigny and Maine, who adhered to the standpoint of
evolutionary rationalism. He also held that the evolutionary model
of social explanation was of cardinal importance in understanding
the practice of the law courts in the common law tradition, and,
more particularly, in understanding the relationship between this
form of judicial practice and the system of constitutional govern-
ment which had developed in England.
The Philosophy of Liberal Conservatism 131

It was only with the emergence of the absolutist states in Europe


during the sixteenth century, Hayek argued, that the process of law-
making had come finally to be conceived as essentially 'an act of the
deliberate and unfettered will of the ruler'. 92 What had prevented
the growth of absolutism in England, however, was the survival
after the Reformation of the deeply entrenched tradition of a
common law lodged in the custody of independent courts with
which Parliament rarely interfered. Within this tradition, Hayek
emphasized, the rule of law was conceived, not as an instrument for
the realization of ends premeditated by a governmental authority,
but, rather, as a barrier against the official powers exercised by the
state. This was why the common law courts had scrupulously
avoided deciding cases by consideration of the public policies
promoted through the legislative and executive institutions of
government. Instead, the courts had confined themselves to the
specification of so-called rules of just conduct - or, more precisely, to
the discovery of rules of just conduct which were assumed by the
courts to form part of a body of law that existed independently of
the will of Parliament. According to Hayek, rules of just conduct
were rules of law which served to organize the transactional
relationships between private persons, and to define the rights
and duties that marked out the protected domain of each individual
legal subject. It was because they had confined themselves to the
specification or discovery of rules of just conduct, he argued, that
the common law courts had been able to uphold the basic political
freedoms intrinsic to the morality of constitutional rule. For Hayek,
then, the constitutional form of individual liberty had been secured
in England, not only because of the objective institutional fact of
judicial independence, but also because of the preference of the
English courts for methods of adjudication appropriate to the
enforcement of the rules of just conduct which made up the private
law of contract and property.
Hayek stressed that the English courts had not restricted their
decisions in controversial cases to judgments which could be
'logically deduced from the body of already articulated rules' or
'supported by the letter of the law'.93 At the same time, he denied
that the private law enforced in civil adjudication had been
invented through the exercise of arbitrary judicial discretion. On
the contrary, for Hayek, judicial reasoning had been governed by a
distinct situational logic, which constrained the courts to endeavour
to preserve the formal structure of the law as 'a system of mutually
132 The Defence of Natural lAw

modifying rules'. 94 Under the terms of this situational logic, the


courts had been constrained to seek to close the gaps in the
established sources of law through a procedure of deliberation in
which the rules of just conduct determined in hard cases were to be
made consistent both with the existing body of established law, and
with the general principles of justice and equity informing the legal
order as a whole. The special status that Hayek assigned to internal
consistency as a constraint on judicial reasoning underlined the
extent to which the procedures followed by the common law courts,
in his account of them, had been guided by a formal principle of
legal justice that he called universalizability, or generalization. This
was so in the respect that essential to the idea of universalizability
as Hayek conceived it was the principle, to which the common law
courts had conformed in their doctrine and practice, that judges
should determine, and legislators enact, general rules of law which
were capable of universal application as part of a single, unified
system of law.
Like Fuller, then, Hayek held that the procedures of adjudication
adopted by the courts in the common law tradition called into
question the model of law constructed by the mainstream theorists
of legal positivism. Attention to these procedures, he argued, would
tell against the classic positivist argument that legal sovereignty
was an unlimited power, in addition to checking the tendency of
positivist jurists to focus narrowly on the law created through
procedures of statutory legislation. Hayek allowed that a system
of predominantly judge-made law - such as English law - always
stood in need of correction and amendment through an institutional
procedure of statutory legislation. To this extent, he affirmed that
the law of legislation was an indispensable form of political
regulation within modem society. At the same time, he empha-
sized that the legal positivists had failed to formulate a definition of
law which incorporated the principles of procedural justice that
grounded the legitimacy of the actual powers wielded by the
sovereign office of legislation of a modem state. Indeed, for
Hayek, the positivists had failed to recognize the normative status
of any principles of justice which were independent of the law
brought into being and enforced by the legislative and executive
institutions of civil government.
In contrast to the positivists, Hayek considered that the formal
principles of legal justice, like the methodological principle of
universalizability in legal reasoning, provided fully objective
The Philosophy of Liberal Conservatism 133

criteria for determining the legitimacy of a rule of law. In conse-


quence, he repudiated the distinction between law and morality
postulated by the positivist jurists. Hayek also believed that the
normative status of the principles of legal justice, as intrinsic to a
legitimate rule of law, called into question the terms of the utilitarian
philosophy to which the mainstream positivists had turned as the
basis for a moral justification of the modem legal system. The
positivists, he maintained, had regarded legal norms as means,
which realized aims and goals that remained external to the formal
structure of the rule of law. Accordingly, the positivists had assumed
that legal norms should be evaluated by reference to a pragmatic
standard of expediency which served to determine the functional, or
instrumental, relationship between the law and the ends advanced
by it. However, Hayek alleged that this assumption had led the
positivists to obscure the respects in which the modem legal system
stood as a form of social regulation whose component rules were
essentially end- or purpose-independent rules of just conduct.
No less than Oakeshott, then, Hayek was adamant that the
positivists had ascribed a teleocratic, or purpose-dependent, character
to the modern rule of law. Hayek argued that this purpose-
dependent conception of law reflected the almost total preoccupa-
tion of the positivist jurists with the organizational rules that
distinguished the public law created through the procedure of
statutory legislation. As a result of this focal concern of their work
in jurisprudence, however, the positivists had misrepresented not
only the character of the private law enforced by the courts, but also
the nature and function of the sovereign office of legislation in a
modem state. In England, Hayek insisted, the original responsibility
of the office of legislation had concerned the supervision of the
institutions of government. It was only later, he suggested, as
statute law began to assume primacy as the foundation of legal
regulation during the nineteenth century, that theorists like Ben-
tham and his followers had been brought to imply that the office of
legislation, and indeed the whole apparatus of the rule of law,
might be employed by central government as an instrument for the
systematic organization, or reconstruction, of the essentially spon-
taneous ordering of civil society.
In Law, Legislation and Liberty, Hayek placed great emphasis on the
special historical connection between the modem ascendancy of
statute law and the development of constitutional democracy in
England during the nineteenth and twentieth centuries. The history
134 The Defence of Natural Lllw

of representative democracy in this period, he contended, had


witnessed nothing less than a major transformation in the accepted
meaning of certain foundational concepts of justice and political
legitimacy. Hayek denied that the institutions of representative
democracy were best understood as comprising an instrument for
the formulation and enforcement of public policy by central
government. In England at least, he argued, democratic institutions
had been established primarily to impose constitutional constraints
upon the exercise of governmental powers. Only after the early
decades of the nineteenth century had these institutions been
appropriated as a procedure through which to extend the range
and scope of the public law of legislation. However, the rise of mass
democracy and party politics in the modern era spawned certain
ideologies of legitimacy -like the doctrine of popular sovereignty -
which had led governments to resort to the organizational rules of
statutory legislation as the means of enlarging the scale of state
control over society. This enlargement in the state control of society
had in turn been marked by the progressive abandonment by
governments of their first duty to enforce the rules of just conduct
declared by independent courts. In this way, Hayek submitted, the
democratization of political institutions had encouraged the belief
that the government of a modern state was directly responsible for
the formulation and execution of public policies concerned with the
promotion of greater social justice.
Hayek questioned the assumption of political theorists in the
liberal tradition that the institutions of modern representative
democracy had safeguarded the principle of individual freedom
under limited government. In the modern period, he argued,
democratic institutions had generally been defended in terms of
nakedly majoritarian theories of political legitimacy. For Hayek,
however, majoritarian theories of legitimacy failed to provide that
the institutional powers exercised by the state on behalf of the
democratic majority should be limited by principles of justice which
protected the basic moral rights of the individual citizen. Hayek,
then, did not in any way confuse the morality of liberal constitu-
tionalism with the conventions of modern representative democ-
racy. On the contrary, he insisted that the integrity of constitutional
government was rooted in the principle of judicial independence, in
addition to being secured by the effective legal enforcement of the
sort of rights to private property that emerged under an economic
system based on free market principles.
The Philosophy of Liberal Conservatism 135

In Law, Legislation and Liberty, Hayek suggested that David Hume


and Adam Smith had been the pivotal figures in the specification
of the basic conceptions of liberal constitutionalism during the
eighteenth century. This was so, he argued, because, unlike
subsequent political scientists, Hume and Smith had recognized
that law and economics were intimately connected as subject-
matters of intellectual enquiry. Hume, of course, broke with the
tradition of the social contract of Hobbes and Locke. He did so
because of a conviction that no normative principle of political
morality - least of all the obligation of compliance with the rule of
law - could ever be created through a voluntary promissory
agreement taking place in a state of nature. According to Hume,
the basic principles of justice - including the requirement of
fulfilling promises and the requirement of compliance with law -
were not natural duties, but artificial duties whose moral force
depended entirely upon human convention. This meant that, for
Hume, the basic principles of justice could possess normative
authority for the individual agent only by virtue of his already
being a member of political society.
By breaking with the earlier contractualist tradition of Hobbes
and Locke, Hayek argued, Hume reflected the type of understand-
ing of human society characteristic of the philosophical viewpoint
of evolutionary rationalism. Hayek went on to claim that this
philosophical viewpoint had also been present in the writings of
Adam Smith and the other classical economists. Like Hume, Smith
rejected the fiction of an original contract as the basis for the
explanation of the nature and origins of political society. Instead,
Smith tried to explain how the emergence and development of
political society took place through the workings of a mechanism
which he called the invisible hand. Smith's theory of the invisible
hand proved to be an immensely influential philosophical idea -
largely because the theory served to make clear the senses in which
modem society remained an essentially purposive form of human
association, and hence fully transparent to human reason and
deliberation, despite the fact that its actual structure and organiza-
tion were not the outcome of any consciously formulated plan or
intention on the part of its members.
Smith used the theory of the invisible hand in the elaboration of
the principles of political economy which he provided in the Inquiry
into the Nature and Causes of the Wealth of Nations (1776). 95 In this
seminal work of classical political economy, Smith regarded the
136 The Defence of Natural Law

modern economy as being essentially a market- and, ideally, a free


market - in which the exchange of goods and services was
governed by certain law-like principles, such as the law of supply
and demand. Smith claimed that the unhindered operation of
market forces, like those of supply and demand, always possessed
a natural tendency to promote equilibrium within society - a form of
equilibrium which Smith, and the later neo-classical economists,
believed would be undermined by any substantial measure of
intervention by government in the organization of economic
production and distribution. According to Smith, this tendency
towards equilibrium prevailed despite the condition of competition
between self-interested agents which was necessary to the efficient
functioning of a market economy. Indeed, he maintained that it was
through the pursuit of their own privately defined interests that the
individual members of a market society were led, as by an invisible
hand, to promote publicly defined goods, like social welfare and
political stability, which formed no part of their original motivation
for engaging in economic activity.
Hayek followed Smith in emphasizing the natural tendency of the
market economy to achieve an internal equilibrium between its
component parts. The special virtue of the free market, he argued,
consisted in its being an essentially spontaneous form of economic
ordering, which was organized around the reciprocally binding
expectations between individuals that proceeded from their mutual
participation in the evolutionary processes of civil society. In
arguing this, Hayek implied that the free market was grounded in
the same principles of political legitimacy which underwrote the
sort of system of judge-made law that predated the modern
ascendancy of statutory legislation. Hence, he stressed that the
special virtue of the free market economy lay in its not being
constructed around any dominant set of publicly agreed substan-
tive ends or objectives. In fact, a society faithful to the principles of
the free market tended to serve 'the multiplicity of separate and
incommensurable ends of all its separate members' .96
It was because of this indifference towards substantive ends,
Hayek claimed, that the market economy of eighteenth-century
England had come to be organized around the sort of purpose-
independent rules which, historically, had made up the private law
elaborated by the common law courts. For Hayek, the rules of just
conduct enforced by the courts articulated a system of rights and
duties which defined the legally protected physical sphere, or
The Philosophy of Liberal Conservatism 137

domain, of each individual person. More specifically, these rules


prescribed the abstract conditions under which the individual
might acquire, own or transfer his property and other personal
assets. However, such rules of just conduct determined neither the
real market value of the economic goods held and exchanged by
particular individuals, nor the relative material success With which
different individuals exercised their property rights and their right
of freedom of contract within the market. This, indeed, was the
main reason why Hayek concluded that the type of legal regulation
specific to the free market conformed to the basic principle of
procedural justice which required that the law should be enforced
without regard to consequences, or to the contingent circumstances
of the particular disputes submitted for decision by the courts.
Hayek conceded that a free market economy always generated
material inequalities in the distribution of wealth and opportunity
throughout society. However, he denied that these inequalities
necessarily involved any substantive or procedural injustice. The
inequalities generated through the operation of a free market were
permissible, he argued, provided that they resulted from voluntary
transactions between individuals which satisfied the conditions
imposed by established rules of just conduct. In this sense, Hayek
recognized that the free market economy unavoidably worked to
disappoint the material expectations of certain individuals within
society. At the same time, though, he emphasized that any attempt
by central government to rectify the grievances caused by such
disappointments, or to eliminate the inequalities which occasioned
them, would compel the state to arrogate to itself the extensive
range of bureaucratic powers that characterized the dirigiste orga-
nization of modem socialist economies.
Hayek believed that the extension of this complex apparatus of
bureaucratic control had inclined the advanced industrialized states
of the modem period to seek to administer civil society, not
through the impartial enforcement of abstract rules of just con-
duct, but through the arbitrary issuing of commands or orders of
the type appropriate to the management of a teleocratic form of
organization. Unlike rules of just conduct, such commands or
orders were purpose-dependent rules, which characteristically
directed designated individuals to the performance of assigned
tasks. As a result, the issuing of commands or orders of this sort
was not governed by the methodological requirement of universa-
lizability which bound the courts in the determination of the
138 The Defence of Natural Law

private law. In both respects, Hayek argued, the bureaucratic


powers essential to modem economic dirigisme forced the civil
authority to violate a core principle of the internal justice of law:
namely, the principle that the state should attach coercive sanctions
only to those official norms and rules which were capable of
possessing equal and uniform application to all their subjects.
Hayek never pretended that the continuing success of free market
capitalism in the contemporary world did not depend upon the
state discharging an important range of interventionist functions in
matters of social and economic organization. Of course, he did
argue strenuously against public sector monopolies. On the other
hand, he accepted that a modem government should make provi-
sion for a publicly maintained health service, an efficient system of
public transport, together with a general system of universally
available free state education. Hayek also acknowledged that
central government would have to impose measures of redistribu-
tive taxation, in order to finance a system of social security benefits
sufficient to assure each citizen a minimum income, irrespective of
his fortunes in the allocation of economic advantage under market
conditions. To this extent, Hayek and Rawls were united in
affirming that a modem free market economy had to be comple-
mented by the main institutions of the liberal welfare state. In
marked contrast to Rawls, however, Hayek was clear that the
legitimacy of modem welfare institutions could not be supported
by universalist principles of social justice. Indeed, he was irrecon-
cilably divided from Rawls by reason of his conviction that the
egalitarian ideology of social justice had licensed exactly the kind of
purpose-dependent policies of modem governments which under-
mined the reality of equality under the rule of law.
According to Hayek, the modem ideology of social justice was an
anthropomorphic illusion, which manifested the predominance of
the metaphysical presuppositions underlying the philosophical
attitude of constructivist rationalism. Constructivist rationalists, he
argued, were ultimately led to adopt the view that society was a
collective agent, to which the ideas of personal volition and respon-
sibility could be meaningfully ascribed. However, Hayek did not
allow that it was metaphysically coherent to conceive of society
itself as a subject of justice. On the contrary, he insisted that justice
was to be understood restrictively, as merely a property of the rules
which governed the conduct of individual persons. In fact, he denied
that the concept of justice possessed any application to the
The Philosophy of Liberal Conservatism 139

impersonal processes by which the economic market allocated


goods and services to individuals within a given society. The
actual consequences of these processes for particular individuals,
he concluded, could be neither just nor unjust, because the
distribution of economic goods and benefits determined by the
market was not itseH the result or outcome of any 'deliberate
human decision'. 97
In restating the terms of the liberal theory of justice, Hayek
asserted an essential congruence between the principles of political
morality inherent in the rule of law and those which structured the
free market economy. It was this congruence, rather than any
abstract philosophical doctrine of individual natural rights or any
explanatory model of an original social contract, which he consid-
ered to explain the legitimacy of the free market as a form of
economic order. The moral basis of free market capitalism, then,
was very much a primary focus of Hayek's intellectual concerns.
For Oakeshott, on the other hand, the defence of the free market
was far from being a dominant theoretical preoccupation. Indeed, to
the extent that it was the concern of Oakeshott, there remained
much obscurity surrounding the precise nature of the relationship
which he held to obtain between the organizational principles of the
free market economy and the attributes of form and substance that
he took to distinguish the modem rule of law.
During the late 1940s, Oakeshott warned, much as Hayek had
warned in The Road to Serfdom, that policies of economic collectivism,
as then pursued by the postwar Labour Government, portended the
eventual destruction of the system of individual rights and liberties
which had traditionally structured the rule of law in England. Hence
in 'Contemporary British Politics' (1948),98 he suggested that the
endeavour of the Attlee Government to impose corporatist planning
on British society would entrench public sector monopolies and lead
inexorably to the 'slavery' of the one-party state. Oakeshott also
shared Hayek's doubts concerning the merits of constitutional
democracy as an institutional safeguard against the momentum
towards continental-style totalitarianism which he saw implicit in
the dirigiste policies of the British Labour Party. Thus in 'The
Political Economy of Freedom',99 a review article published in
1949, he emphasized that the freedom of the individual in England
lay in 'a coherence of mutually supporting liberties', and that this
freedom sprang from 'the absence from ... society of overwhelming
concentrations of power' .100
140 The Defence of Natural Law
It would be misleading to infer from this critique of postwar
collectivism any unequivocal commitment on Oakeshott' s part to
the values of free market capitalism. For instance, in the essay
'On Being Conservative' (1956),101 Oakeshott explicitly denied that
the idea of individual liberty under the law presupposed either that
private property should be conceived as a 'natural right', or that an
absolute moral value should be assigned to 'the free play of human
choice'.102 More fundamentally, it remains difficult to see how the
analysis of traditionalism in politics, the mainstay of Oakeshott's
critique of European rationalism, gave rise to any normative
principles of political morality which could have convincingly
supported his denunciation of the moderate socialist programmes
pursued by the Attlee Government.
Like Hayek, Oakeshott believed that the legitimacy of a given
rule of law derived not from abstract principles of political morality,
but from the settled expectations of its subjects, as these were
engendered by the local customs and traditions of the community
which that legal system happened to constitute. Indeed, in
'Rationalism in Politics', Oakeshott went so far as to complain that
The Road to Serfdom marked a retreat into rationalism in the respect
that Hayek had sought to create an ideology out of a 'plan to resist
all planning' .103 He also made it plain, most notably in Political
Education, that controversial deliberation about the substantive
requirements of a rule of law within an actual society was always
guided by the pursuit of whatever intimations were carried in the
existing traditions of moral and political practice of that society.
Nevertheless, Oakeshott did not satisfactorily explain why poli-
tical regimes based on principles of economic dirigisme - or, for that
matter, any other form of collectivist political organization that
drew its inspiration from the ethos of European rationalism -
might not generate their own internal legitimacy through success-
fully embedding themselves in the traditions and customs of the
communities from which they sprang. Nor did he supply any very
convincing arguments for excluding the possibility that the tradi-
tional arrangements of a society committed to the free market
system might intimate the necessity of a substantial modification,
or even an abandonment, of its existing structures of economic
ordering. At any rate, he supplied no arguments capable of carrying
much persuasive power in the circumstances of modem societies
which comprehended a wide diversity of morally and culturally
significant traditions of political activity.
The Philosophy of Liberal Conservatism 141

Of course, there were obvious senses in which the theory of civil


association, as expounded in On Human Conduct, was intended by
Oakeshott to sustain the burden of his case against postwar
socialism in Britain. He emphasized that the tradition of govern-
ment in which the state was conceived in the idiom of universitas
had been perpetuated during the twentieth century by the growth
of political and economic collectivism. Indeed, for Oakeshott, the
great collectivist ideologies of this period - like the social service
state, the welfare state, communism and national socialism - had
helped serve to subvert 'the civil institutions of modern Europe',
and to corrupt 'the vocabulary of civil discourse'. 1ot However, he
was careful to stop short of identifying the ruling conception of the
European state as a societas with the principles of political organiza-
tion associated with the modem free market economy. In fact, in
closing On Human Conduct, he was insistent that the idea of the state
as a societas should not be confused with the idea of an economic
order based on principles of '"free enterprise'".105
In 'Talking Politics', Oakeshott acknowledged that the theory of
civil association would probably be interpreted as describing an
ideal form of political society which presupposed an economic
system based upon unregulated freedom of private enterprise.
Nevertheless, as in most of his later work, Oakeshott stressed that
there could be no private actions or interests which were not, in
principle, subject to the public constraints embodied in the civil law.
As a result, he denied that the freedom secured by the legal and
constitutional order of the modem state was to be identified with
any supposedly unconditional rights and liberties, like the alleged
rights to freedom of religious confession or to freedom of economic
choice - and least of all where such rights and liberties were
understood to consist in guaranteed 'exemptions' from the general
obligation imposed by law. He insisted, rather, that the supposed
moral and political rights of the individual person were really the
'obverse of civil obligations', which could acquire determinacy only
through their specification in the law as part of 'a collection of
exactly described obligations'.106
The relationship that Oakeshott took to obtain between the idea
of individual rights and the idea of legal obligation was a measure
of the underlying commitment to the metaphysical assumption of
the primacy of positive law which informed his critique of Hobbes's
civil philosophy. Indeed, the conventionalist status which Oake-
shott assigned to individual rights in 'Talking Politics' was entailed
142 The Defence of Natural Law

by what he took to be the essential attribute of the modern


European state discerned by Hobbes: namely, the attribute of legal
sovereignty intrinsic to its office of government. In accordance with
the conventionalist view of law that he took over from Hobbes,
Oakeshott implied that the particular rights and obligations speci-
fied in the positive law of a given political community, and the
actual sphere of application of this law, were matters which
remained entirely subject to the jurisdiction of the sovereign
powers vested in the supreme office of legislation of that commu-
nity. However, Oakeshott prescribed no principles of political
morality, inherent in the idea of civil association, that formally
prohibited the supreme office of legislation of a modern state from
stipulating rules of law, through an act of sovereignty, which imposed
extensive regulatory controls upon the processes of economic
production and distribution at work within society, or which
brought into being and maintained a system of welfare rights
financed through measures of redistributive taxation. Indeed, the
constitution of the modern sovereign state, at least as Oakeshott
described it in On Human Conduct, did not formally preclude the
implementation by its government of precisely the sort of manage-
rial policies which he identified with the teleocratic tradition in
public administration.
To be sure, Oakeshott insisted that there were certain rights
intrinsic to the rule of law - like the right of an accused person to
due legal process - which could not be justly set aside by the
government of a modern state. Even so, he did very little to prove
that the formal rights embedded in this procedural morality of law
fell under a different concept of justice from that basing the sort of
rights to substantive goods, like those to free education or medical
care, whose realization presupposed the type of public policies that
exemplified the managerial style of civil adminstration. In fact, there
were powerful considerations adduced by Hayek- and later by
Dworkin- for concluding that the model of law that originated with
Hobbes neither secured the moral overridingness of the require-
ments of procedural legal justice, nor excluded those teleocratic
engagements of the modern state which, on Oakeshott's account of
the matter, had diminished the force of individual rights. At any
rate, the model of law contained in the theory of civil association did
not suffice to underwrite the normative priority of the system of
rights to private property and freedom of contract which Hayek
identified as the moral foundation of the free market economy.
The Philosophy of Liberal Conservatism 143

Hayek argued for an internal relationship between the formal


structure of the rule of law and the formal structure of the free
market economy. At the same time, he described this relationship in
terms of a comprehensive analysis of law and adjudication, which
incorporated an historical interpretation of the practice of the courts
in the common law tradition. In doing so, Hayek agreed with
Oakeshott that the institutional virtue of legal certainty was rooted
in the procedural principles of natural justice which ordered the
formal administration of the law by the various branches of civil
government. He also agreed with Oakeshott that the institutional
virtue of legal certainty was essential to the full realization of the
moral and political rights of the individual citizen. In sharp contrast
to Oakeshott, however, Hayek emphasized that the integrity of
individual rights could be secured only through the procedures of
adjudication adopted by the common law courts. Furthermore, he
implied that the metaphysical basis of these procedures diverged
absolutely from the metaphysical basis of the voluntarist conception
of law and legal obligation adhered to by Hobbes and his positivist
descendants. Crucially, the procedures of adjudication characteris-
tic of the common law tradition had permitted the courts to decide
disputes through articulating the rules of just conduct that made up
the complex system of private law. In this way, Hayek claimed, the
courts had been able to give concrete legal expression to the
schedule of rights to private property and freedom of contract
which evolved from the spontaneous processes of social ordering
that structured the market economy in England during the classical
period of its development.
Hayek's theory of law and adjudication stands as a substantial
contribution to the great jurisprudential tradition of legal natural-
ism. For Hayek, as for Fuller, the examination of the procedures of
civil adjudication was intended to disclose the essential unity of
analytical jurisprudence with the normative concerns of moral and
political philosophy. Nevertheless, Hayek did not succeed in
demonstrating any necessary connection between the methods of
judicial deliberation which he ascribed to the common law courts
and the system of individual rights that he associated with the
market economy of eighteenth-century England. At no stage did he
establish why these rights should be adopted by modem courts as a
normatively compelling standard of judicial decision in the future
development of case law - any more than the Oakeshott of
Rationalism in Politics established why the government of a modem
144 The Defence of Natural Law

sovereign state should assign an overriding normative weight to


those traditions of European civility which gave credence to the
polemically anti-socialist positions set out in 'Contemporary British
Politics'. In the last resort, the formal requirements of judicial
method prescribed in Lllw, Legislation and Liberty yielded no
determinate criteria for distinguishing among competing principles
of political morality,.as these were instantiated in the plurality of
customs and traditions which Hayek (like Oakeshott) regarded as
an essential feature of modem liberal society. Hayek's failure to
establish any such criteria is a fact about his theory of law and
adjudication which stands confirmed by attention to the work of
Ronald Dworkin, a jurist who sought to bring the descriptive
analysis of the practice of the courts into a direct relationship with
the defence of the Rawlsian interpretation of the liberal theory of
justice.
4
Ronald Dworkin: Legal
Philosophy and the Liberal
Th.eory of Justice
Dworkin did not adopt the theoretical standpoint afforded by the
great classical and medieval traditions of natural law philosophy.
Nevertheless, Dworkin challenged the analytical model of law
constructed by the mainstream theorists of legal positivism, in
addition to repudiating the utilitarian principles of political mor-
ality which the legal positivists had formulated as a normative
justification for the modem rule of law. In the articles collected in
the volumes Taking Rights Seriously (19Tn 1 and A Matter of Principle
(1985),2 and in the systematic exposition of his legal ~hilosophy
provided in the full-length book Law's Empire (1986), Dworkin
developed a complex theory of law and society, which turned
upon arguments concerning the logical structure of the procedures
of judicial reasoning that organized the adjudication of hard cases
in the civil law. These arguments exposed the fatal defects in both
the conceptual and normative elements of the so-called ruling theory
of law which Dworkin believed to run through the work of jurists
such as Bentham, Austin, Kelsen and Hart.
In challenging the positivist analysis of law, Dworkin prescribed
neither socialist nor conservative principles of political morality. He
denied that the ruling theory was flawed because of its individ-
ualistic view of political society, or because of its rationalistic
indifference towards the tradition-based authority exerted by the
law of custom. On the contrary, the theory of law and civil
adjudication which Dworkin propounded combined a descriptive
analysis of legal order with a concerted defence of the normative
principles of political morality central to Rawls's restatement of the
philosophy of Kantian liberalism.
Dworkin rejected the ruling theory of law because neither its
analytical nor its utilitarian arguments guaranteed the inviolability
of the moral and political rights attributed to the individual person
145
146 The Defence of Natural Law

under the Rawlsian conception of justice as fairness. He commen-


ded his own legal theory, on the other hand, because it demon-
strated that a metaphysical assumption in favour of the reality of
individual rights was actually presupposed by the very idea of the
rule of law.
Unlike the positivist jurists, then, Dworkin argued that moral and
political rights were conceptually distinct from the positive legal
rights created through formal procedures of legislative enactment
or generated by the law of custom. Indeed, he famously character-
ized such moral and political rights as trumps, which individuals
held against policies of state designed to maximize the collective
welfare of a community. Under this characterization, individual
rights were taken by Dworkin to possess a normative integrity
which remained compromised by any general utilitarian justifica-
tion of the rule of law. In these respects, Dworkin's theory of rights
implied the necessity of restoring the unity of legal philosophy and
moral and political philosophy that distinguished the work of
thinlcers in the pre-modem tradition of natural law.

i. THE CRITIQUE OF LEGAL POSITIVISM: HARD CASES,


PRINCIPLES AND ADJUDICATION

Dworkin first outlined his theory of law and adjudication in the


seminal articles 'The Model of Rules' (1967)'' and 'Hard Cases'
(1975).5 These articles established the main grounds for his reject-
ion of the analysis of law and society developed by the leading
theorists of legal positivism.
Legal positivists, Dworkin argued, had generally assumed that
the law of a political community comprised a set of special rules,
whose primary function was to specify the forms of social behav-
iour which were to be liable to the coercive sanctions inflicted by
the governmental authority. The positivists had further assumed
that rules of law were always identifiable by special criteria of legal
validity, where these criteria stood as tests or standards concerned
not with the substantive content of such rules, but with their
pedigree - that is, with the manner in which the rules were
originally prescribed or adopted by the judicial and political
institutions of a given community. Accordingly, positivist jurists
had held that legal rules were distinguishable from social, moral
Legal Philosophy and the Liberal Theory of Justice 147

and other non-legal norms and conventions because of their


derivation from, or systematic relation to, some master rule or
test, such as Austin's legal sovereign or Hart's rule of recognition,
which constituted the ultimate ground of legal validity accepted by
that community. Lastly, Dworkin maintained that jurists in the
Austinian tradition had understood the law of a community to be
made up exclusively of rules whose validity could be established in
terms of its accepted master rule or test. In consequence, they
considered that the rules validated by the master rule or test of a
community comprised the sole and exclusive source of the rights
and obligations which, within that community, were to be regarded
as possessing legal force.
Dworkin insisted that the identifying conceptual claims of the
positivist analysis of law significantly misrepresented the complex-
ity of the modem legal system. Above all, he argued, the positivist
jurists had neglected the status and function in law and adjudica-
tion of standards, like policies and principles, which were distinct
from legal rules. For Dworkin, policies articulated the economic,
social and other political goals of a community, and, in doing so,
provided a basis for the judicial interpretation of the explicit terms
of the particular body of statutory legislation through which these
publicly defined objectives were realized by that community.
Principles, however, articulated the general requirements of fair-
ness and justice underpinning the law and its administration. Such
fundamental principles of law were typified, Dworkin suggested,
by certain of the guiding maxims of adjudication adopted by the
common law courts, like the precept that no one should be
permitted to profit from his own wrong, and also by the basic
procedural canons of judicial reasoning, such as the doctrines of
legislative supremacy and strict adherence to precedent.
Dworkin recognized important formal differences between legal
rules and legal principles. For example, he emphasized that the
existence of legal rules was usually a matter to be settled by criteria
of strict legal validity. Legal rules thus tended to dictate judicial
decisions, in the sense that they virtually bound judges to reach
particular conclusions in the cases to which they had application.
Legal principles, on the other hand, possessed a quality of weight
which was distinct from that of strict legal validity - with the
consequence that legal principles could never conclusively deter-
mine the outcome of any judicial dispute. For Dworkin, then,
adjudication in terms of legal principles differed from the straight-
148 The Defence of Natural Law

forward judicial enforcement of legal rules in being inherently


controversial.
Despite these contrasts between rules and principles, Dworkin
insisted that principles formed an integral part of the modem legal
system and that this truth undercut the conceptual claims of legal
positivism. Specifically, the existence of legal principles undercut
the positivist assumption that the system of law of a given society
consisted exclusively of legal rules whose validity was determinable
by criteria of pedigree. Most legal principles, Dworkin argued, were
not in fact created by the formal decisions of any judicial or
legislative institution. Instead, they emerged from 'a sense of
appropriateness developed in the [legal] profession and the public
over time'. Hence, the validity of legal principles was to be
determined, not by their systematic relation to some master rule
or test of pedigree, but, rather, by reference to a complex manifold
of 'shifting, developing and interacting standards ... about institu-
tional responsibility, statutory interpretation, the persuasive force of
various sorts of precedent, the relation of all these to contemporary
moral practices, and hosts of other such standards'.6
The conditions of validity which Dworkin believed to mark the
emergence of legal principles served to collapse the dualism,
postulated by positivist jurists, between the rule of law and the
other social, moral and political norms followed within a given
community. This was so because, for Dworkin, legal principles were
validated ultimately by the moral and political practices embodied
in the community as a whole. Accordingly, he insisted that the
character of legal principles remained irreconcilable with the
assumption of jurists like Bentham, Austin and Hart that legal
rights and obligations could exist only when explicitly specified
in rules of positive law. Not only did legal principles frequently
provide a sufficient justification for the determination of legal rights
and obligations. More fundamentally, the underlying legal princi-
ples of a community, together with the moral and political practices
in which these principles were embodied, constituted the presup-
posed background for the identification of the formal rights and
obligations specified in the positive law of that community.
Dworkin complained that neglect of the status and function of
legal principles had led the positivist jurists to formulate a highly
unsatisfactory theory of adjudication in hard cases. The category of
hard cases, of course, comprised legal disputes which were not
capable of decision by the courts through the application of
Legal Philosophy and the Liberal Theory of Justice 149

formally prescribed rules, and which in consequence tended to


expose gaps in the positive law of a community. Dworkin argued
that the positivists had constructed a model of law according to
which hard cases were supposed to be decided by an exercise of
arbitrary judicial discretion, rather than through the enforcement of
genuinely legal rights and obligations. As a result, the positivists
had implied that adjudication in hard cases involved the judicial
legislation and retrospective enforcement of the rights and obliga-
tions of the parties to such disputes - where these rights and
obligations were validated by moral and political standards which
were not recognized to form a distinct part of the law.
For Dworkin, the theory of adjudication implicit in the positivist
model of law could not be reconciled with the legitimate role played
by legal principles in the judicial decision of hard cases. It was an
important characteristic of adjudication in hard cases, he argued,
that legal principles were assumed by the courts to exist as part of
the law prior to the decision of the actual disputes in which they
were invoked. Legal principles thus offered a justification for the
rights and obligations enforced in hard cases which remained
rooted in the existing law of a community. In this way, adjudica-
tion in terms of legal principles answered to the expectations of the
parties in a hard case that they were entitled to a judicial
determination of their legal rights and obligations, and not merely
to a discretionary decision of the substantive issue at stake in their
particular dispute. Hence it was entirely misleading, Dworkin
submitted, to construe adjudication in hard cases as involving the
judicial legislation and retrospective enforcement of the rights and
obligations of the parties concerned. So far from being invented
through the exercise of arbitrary judicial discretion, these rights and
obligations were established in the manner of discwery, through
judicial arguments about the meaning of principles recognized to be
already embedded in the law of the community.
Dworkin argued for a strong internal relationship between the
idea of legal principles, upon which he based his theory of
adjudication, and the particular concept of individual rights upon
which he based his normative theory of political morality. He
explained this relationship by developing the implications for civil
adjudication of a fundamental distinction between arguments of
policy and arguments of principle. Arguments of policy, he
claimed, characteristically tended to justify the decisions of judicial
and political institutions by showing how these decisions advanced
150 The Defence of Natural Law

the collective goals of a community. However, such arguments did


not necessarily provide that the social and economic goods defined
by these collective goals should be allocated to particular indivi-
duals in accordance with any structured criteria of distribution.
Arguments of principle, by contrast, appealed directly to those
rights of individuals or groups which possessed a so-called thresh-
old weight against both the collective policies of the community and
the institutional decisions by which these policies were chosen. In
consequence, arguments of principle characteristically demanded
that the social and economic goods promoted by collective policies
should be allocated according to criteria of distributive fairness
which were consistent with the system of rights respected in the
community at large.
It stood out as the central thesis of Dworkin's legal theory that
civil adjudication was guided by arguments of principle rather than
policy, and that judicial decisions in hard cases were governed by
principles of legal and political morality which defined the rights
held by individuals. The ultimate justification for the determination
of concrete rights in hard cases, he argued, was based in the
reasoning of judges about the implications of the abstract, or
background, moral and political rights to which their community
was committed throughout its legal and institutional arrangements.
As a result, judges had an inescapable obligation to construct a
coherent schema of the abstract principles of justice and fairness
which underwrote, not only the rights and duties determined in
hard cases, but also the positive legal rights and duties laid down in
conventional sources of law such as judicial precedents and
statutory legislation. For Dworkin, the construction of this schema
required that judges should seek to formulate nothing less than a
general theory of law and society, which engaged with the
principles of political morality of their community at the very
highest level of philosophical self-consciousness. It was in this
sense that Dworkin contended that civil adjudication unavoidably
involved reflection upon controversial questions of directly political
concern.
Dworkin denied that the political orientation of adjudication was
at variance with the standard practice of the courts. For example, he
was clear that the theory of hard cases did not license judges to
discount the established legal conventions of their community. In
fact, he emphasized that the parties to a hard case were entitled to a
judicial determination of their legal rights only when this was
Legal Philosophy and the Liberal Theory of Justice 151

supportable by principles of political morality which accorded


with the law of the community in its entirety. Again, Dworkin
stressed that judicial deliberation in hard cases was subject to the
same discipline of political responsibility which governed adjudica-
tion generally. Under this discipline, he argued, judges were
required to pursue articulate consistency in the elaboration and
extension of legal principles over different cases. This meant that
judges were required not only to make their decisions in different
cases consistent with one other, but also to make these decisions
consistent in terms of some systematically constructed theory of
background legal and political principles.
This requirement of articulate consistency made clear the extent
to which the theory of hard cases was intended by Dworkin as an
analytical schematization of the procedures of adjudication by
precedent adopted by the courts in the common law tradition. For
Dworkin, a distinguishing feature of common law adjudication was
that legal disputes were decided in deference to the gravitational
force exerted by judicial precedent, even when such disputes fell
outside the particular orbit of the literal terms of any established
precedents. In this way, Dworkin argued, the doctrine of adherence
to precedent had constrained the courts to develop the law by
basing their decisions in hard cases upon a reasoned application of
the legal principles informing the whole body of existing prece-
dents. Dworkin maintained that the normative authority attaching
to the constraint imposed by pre-existing precedents derived from
the principle of legal justice that like cases should be treated alike. It
was for this reason that the common law doctrine of adherence to
precedent provided a justification, securely rooted in standard
judicial practice, for Dworkin's conclusion that the parties in a
hard case were entitled, as a requirement of legal morality, to a
determination of their rights which proceeded from a principled
interpretation of the established sources of law.
Dworkin denied that the theory of hard cases entailed the
attribution of any legislative responsibilities to the judiciary which
threatened the integrity of the institutional structure of representa-
tive democracy, or which otherwise subverted the moral-political
principle of the constitutional separation of powers. He accepted
that the collective policies of a community were properly decided
by its legislative and executive institutions, and, further, that such
institutions were best organized in accordance with the majoritarian
principle of fairness which grounded the constitutional order of
152 The Defence of Natural Law

representative democracy. Similarly, he stressed that judges re-


mained bound by the principle of legislative supremacy to abide
by the explicit terms of the statute law enacted and enforced by
these institutions. Nonetheless, he argued that this principle did not
relieve the courts of their special institutional responsibility to
assess the relationship between the collective policies promoted in
statutory legislation and the background principles of political
morality which underlay the formal legal system of their commu-
nity. Indeed, in 'Constitutional Cases',7 an article dating from 1972,
Dworkin pointed out that this responsibility fell to the American
courts precisely because the terms of the United States Constitution
expressly affirmed the existence of certain fundamental moral and
political rights which individual citizens were assumed to hold
against the political institutions authorized to represent the interests
of the democratic majority. To this extent, Dworkin believed that
the theory of hard cases worked to entrench, rather than to
undermine, the status of judicial independence as a primary
institutional requirement of the morality of constitutional rule.
The articles assembled in Taking Rights Seriously and A Matter of
Principle outlined the conceptual structure for a general theory of
law and society. In Law's Empire, Dworkin offered a comprehensive
reformulation of his theory of law and adjudication. In doing so, he
developed the positions defended in his earlier work in three
crucial respects.
First, Dworkin expounded a theory of adjudication which, in
having application to the judicial decision of both hard and
unproblematic cases, confirmed that all judicial deliberation was
shot through with moral and political presupposition. Second,
Dworkin sought to relate his theory of law and adjudication to
the central questions of political philosophy. Specifically, he used
his legal theory to try to explain the nature of political obligation, to
disclose the connection between law and the permanent require-
ments of justice and political morality, and to establish the formal
and substantive principles underpinning the legal organization of
society which might actually serve to guarantee the legitimacy of
the modern political order.
Third, Dworkin constructed a general philosophy of law and
society which conformed to a leading methodological assumption
in legal theory adopted by jurists as different as Weber and Hart.
Any adequate theoretical analysis of law, he insisted, had to eschew
the external point of view of the legal sociologist or historian, and seek
Legal Philosophy and the Liberal Theory of Justice 153

instead to recreate the internal point of view of those who participated


in the legal system of a community. This meant that the jurist was
bound to examine adjudication and the other processes constitutive
of a legal system in terms of the conscious beliefs and purposes of
its subjects and officials. Accordingly, Dworkin supported his
analysis of adjudication with a theory of interpretation in the law.
As did Fuller in The Law in Quest of Itself, Dworkin maintained
that attention to the element of interpretation in adjudication would
call into question the assumption of jurists in the positivist tradition
of an absolute distinction between the description of law and its
evaluation. For Dworkin, the positivist jurists had adhered to a so-
called plain-fact view of legal phenomena, according to which all
significant debate about the law was held to presuppose the
acceptance by lawyers and judges of agreed factual criteria for
identifying the grounds of law. Positivists from Austin to Hart had
taken up this plain-fact view, he argued, because they sought to
identify the essential character of legal rules by attending to the
events that marked their historical origins, such as their enactment
by legislatures or their adoption by the courts. The positivists had
therefore restricted disagreements about the law to political dis-
putes about its justice or morality, or to empirical arguments about
whether particular legal rules satisfied the conditions of legal
validity accepted within existing societies. As a result, the positi-
vists had been unable to account for what Dworkin called theoretical
disagreements about law. These disagreements did not involve
disputes about the morality or formal validity of law. For Dwor-
kin, theoretical disagreements about the law involved the funda-
mental disagreements among lawyers and judges about what the
law really was, or about what it actually required in controversial
cases submitted for adjudication.
Dworkin attributed the ascendancy of the plain-fact conception of
legal reality, together with the neglect of theoretical disagreements
about law, to the widespread failure of modern jurists to recognize
that the law was a social practice, which had to be understood
through certain procedures of constructive interpretation. These
procedures characteristically combined elements of description
and evaluation through three distinct stages of interpretation: a
preinterpretive stage, at which the basic rules and standards compris-
ing a social practice were identified; an interpretive stage, at which a
general justification for these rules and standards was formulated;
and a postinterpretive or refrmning stage, at which the identification of
154 The Defence of Natural LAw

what the rules and standards really were and required was
adjusted, so as better to serve the justification provided at the
second stage.
It was a further characteristic of the procedures governing the
constructive interpretation of a social practice that they also called
for a purposive explanation of their object. Accordingly, Dworkin
distinguished constructive interpretation both from scientific inter-
pretation and from what he termed conversational interpretation.
Scientific interpretation, he argued, provided a causal explanation of
its subject-matter, which excluded the element of conscious human
intention essential to the interpretation of social practices. In
conversational interpretation, the meaning of a social practice was
interpreted in terms of the intentions and purposes of its authors or
participants, in the same way that the meaning of a conversation
was interpreted by reference to the real intentions of the speakers.
Dworkin denied that this speaker's me~~ning theory of interpretation
was appropriate to the explanation of social practices. From the
standpoint of constructive interpretation, he argued, the underlying
purpose of a social practice was not understood to correspond to
any of the actual historical purposes, intentions or other mental
states of its members. On the contrary, these purposes and
intentions were ascribed to the social practice through the act of
constructive interpretation itself.
Dworkin considered the purposive character of constructive
interpretation to tell against any assumption of a final discontinuity
between the description of a social practice and the critical
evaluation of its point or justification. Hence, the procedures
integral to constructive interpretation tended to collapse the dis-
tinction between the description and evaluation of legal reality
central to the plain-fact view of law. The constructive interpretation
of law demanded, rather, that legal rules should be identified,
applied and criticized by reference to that point or purpose of a
legal practice which was taken to constitute its ultimate ground of
justification.
Dworkin conceded that any given social practice tolerated a
diversity of rival interpretations of the point or purpose which
represented its best justification. However, he maintained that
constructive interpretation was a fully rational procedure of
analysis, with the consequence that he insisted that certain inter-
pretations of a given social practice could always be regarded as
being more objectively convincing than others. In this way, the logic
Legal Philosophy and the Liberal Theory of Justice 155

of constructive interpretation avoided the implication of the plain-


fact view that rationally significant argument about the law always
presupposed prior agreement about the factual criteria governing
the identification of its empirically observable features. According
to Dworkin, theoretical disagreements about the law were to be
understood in terms of the underlying disagreements among
lawyers and judges about rival constructive interpretations of law
and judicial practice. These interpretations reflected conflicting
judicial convictions as to 'the "point'' - the justifying purpose or
goal or principle- of legal practice as a whole'. As a result, judges
were required to develop constructive interpretations of legal
practice capable of yielding general theories of law and society.
Although inherently controversial, such general theories of law had
nonetheless to conform to the procedural constraints of constructive
interpretation - by seeking, first, to interpret 'the main point and
structure of legal practice', second, to show 1egal practice as a
whole in its best light', and, third, to achieve 'equilibrium between
legal practice ... and the best interpretation of that practice'.8
The merits of different legal theories, Dworkin claimed, were
themselves capable of evaluation by certain objective criteria of fit
and justifict~tion. These criteria of fit and justification determined,
respectively, the conformity of general theories of law to the
established legal practice of particular communities, and their
congruence with the principles of political morality which were
acknowledged by the members of these communities to confer
legitimacy upon their actually existing legal arrangements.
In Law's Empire, Dworkin distinguished three general theories of
law: conventionalism, which corresponded roughly to the model of
law that Dworkin associated with legal positivism; pragmatism,
which based adjudication upon considerations of policy rather
than principle; and law as integrity, which reformulated the analysis
of adjudication in hard cases outlined in Talcing Rights Seriously.
These theories each provided an account of the nature of law, in
addition to proposing a moral and political justification for the
coercive force exerted through law. Hence, each theory identified
the law of a given community with the legal rights and duties
which were created by or flcnoed from antecedent political or judicial
decisions, while also assuming that the coercive force of law could
possess legitimacy only when its exercise was necessary to enforce
the rights and duties established by these decisions. The theories
diverged, however, because they offered rival explanations of the
156 The Defence of Natural Law

relationship between law and coercion, of the moral and political


justification for requiring that the exercise of coercion be made
consistent with the rights and duties created by prior institutional
decisions, and of the particular conception of consistency between
these rights and duties and such institutional decisions which best
served this justification.
It was essential to conventionalism, Dworkin argued, that it
identified the law of a community exclusively with the rights and
obligations created by the past decisions of its political and judicial
institutions - where these decisions were taken to be immune from
theoretical disagreement among lawyers about their actual mean-
ing. Accordingly, conventionalism provided that the coercive force
of law should be deployed against the citizen only when such
coercion was consistent with the explicit content of previous instit-
utional decisions, as this was articulated uncontroversially in the
established legal conventions of a community. The moral and polit-
ical justification which conventionalism assumed for the constraint
upon the exercise of coercive force implied in this conception of
consistency, Dworkin claimed, consisted in the 'predictability and
procedural fairness' supplied by the constraint, rather than in any
more substantive principles of justice or fairness. Conventionalism
thus upheld a political ideal of protected expectations under the law,
in the sense that it demanded that 'collective force should be used
only in accordance with standards chosen and read through
procedures the community as a whole knows will be used for that
purpose'.9
Dworkin maintained that conventionalism was an inadequate
interpretation and justification of established legal practice. Con-
ventionalism held that courts should adjudicate by reference to
uncontestable legal conventions. However, the theory also allowed
that judges should decide hard cases through the legislation of
rights and obligations which had no warrant in the explicit content
of the legal conventions of their community. In this respect,
conventionalism misrepresented the actual determination of judges
to make their decisions in hard cases consistent with pre-existing
sources of law, like statutes and judicial precedents. Hence,
conventionalism conflicted with the working assumption under-
pinning standard judicial practice that principled consistency in
adjudication was itself a source of the rights and obligations
enforced in hard cases.
For Dworkin, then, conventionalism transgressed the very
Legal Philosophy and the Liberal Theory of Justice 157

principle of protected expectations under the law which the theory


itself proposed as the fundamental justification of legal order. This
principle affirmed that the exercise of coercive power against the
individual citizen should be consequent upon proven violations of
pre-existing legal conventions, rather than upon controversial
judicial decisions about the abstract requirements of political
morality. However, Dworkin stressed that conventionalism did
not vindicate the principle of protected expectations as effectively
as a legal theory which excluded procedures for the adjudication of
hard cases altogether. On the contrary, he argued that the discre-
tionary licence that conventionalism permitted the courts in decid-
ing hard cases imported an element of arbitrariness into the judicial
process, and one which was ultimately subversive of the principles
of procedural fairness encapsulated in the ideal of protected
expectations under the law.
Pragmatism differed from conventionalism in comprising a
radically instrumentalist theory of law and adjudication. Accord-
ing to Dworkin, pragmatist legal theories rejected the principle that
the courts had a special responsibility in political morality to render
judgments consistent with the legal conventions established by past
institutional decisions. Instead, pragmatism licensed judges to settle
disputes on the basis of their assessment of what would best serve
the future interests of their community. Hence, pragmatism as-
sumed that the justification for the use of the coercive force of law
against the individual derived from 'the justice or efficiency ... of
the coercive decision itself, rather than from its 'consistency with
any past legislative or judicial decision' .10
Dworkin repudiated pragmatism as an interpretation of law by
virtue of its deep-rooted scepticism about the status of rights.
Pragmatism, he complained, interpreted legal rights instrumental-
ly, as 'servants of the best future', but as lacking any 'independent
force or ground'.U In doing this, however, pragmatism failed to
explain either the pervasiveness of the idiom of rights in legal
discourse and legal practice, or the working acceptance by courts of
established legal conventions as an authoritative source of rights.
Furthermore, pragmatism provided no morally compelling justifi-
cation for the exercise of lawful coercive force against the individual
citizen. This was so, Dworkin argued, because pragmatism denied
the possibility of non-strategic legal rights - that is, rights which
could be taken by the courts to override institutional decisions
intended to advance the collective interests of society.
158 The Defence of Natural 'Ulw

Dworkin presented law as integrity as a synthesis of the best


elements of conventionalism and pragmatism. Like pragmatism,
law as integrity affirmed the responsibility of judges to revise the
law in response to the evolving needs of their community. Unlike
pragmatism, but in common with conventionalism, law as integrity
also affirmed the reality of legal rights. In contrast to convention-
alism, though, law as integrity did not identify the legal rights of a
given community exclusively with the rights specified in the
explicit content of the legal conventions created through the
decisions of its authorized law-making institutions. For Dworkin,
law as integrity also recognized that the legal rights of a community
derived from the principles of political morality which constituted
the presupposed justification for its conventional system of law.
Law as integrity stood as an essentially non-conventionalist thesis
about the grounds of law and legal rights. The theory assumed that
the legal rules of a community were valid not only because of their
consistency with prior institutional decisions, but also because of
their coherent relationship with 'the principles of justice, fairness,
and procedural due process' that offered 'the best constructive
interpretation of [that] community's legal practice'.U Under law
as integrity, Dworkin maintained, such principles were recognized
to serve as a foundation for the legal rights and obligations enforced
by the courts in hard cases. Accordingly, law as integrity did not
restrict the moral and political justification for the limitations
imposed upon the coercive force of law to the conventionalist
requirement of predictability in procedural due process. Instead,
law as integrity affirmed that, in a real community, these limitations
were themselves underwritten by the more substantive principles of
justice and fairness embodied throughout its political structure and
legal doctrine.
Dworkin went on to claim that law as integrity offered the most
persuasive theoretical interpretation of the American legal system,
as determined by the criteria of fit and justification. Only law as
integrity, he argued, matched the established conventions of
American legal practice, in addition to remaining faithful to the
principles of justice and morality embedded in the American
political tradition which were understood to confer legitimacy
upon these conventions. Law as integrity also brought out the
political dimension of law and adjudication, which conventional-
ism obscured, while avoiding the implication of pragmatism that
Legal Philosophy and the Liberal Theory of Justice 159

the courts were licensed to decide issues of public policy in defiance


of the constraints of judicial discipline. Moreover, law as integrity
stood apart from conventionalism and pragmatism in being a
constructive interpretation of legal practice which acknowledged
that civil adjudication was governed by the procedures of construc-
tive interpretation. In all these respects, Dworkin submitted, law as
integrity ranked as the best theoretical account of the methods of
judicial reasoning adopted by the American courts in the inter-
pretation of statutory legislation and the Constitution.
According to law as integrity, the courts were required to enforce
statutory legislation by developing constructive interpretations of
its meaning in specific legal disputes. In tum, this methodological
requirement of integrity directed the courts to seek to articulate the
underlying point or purpose which lent justification to the explicit
provisions of particular statutes. Dworkin emphasized that the
procedure of interpretation set out in the theory of law as integrity
accorded with accepted canons of judicial reasoning. Crucially, the
procedure provided that the courts should expound justifications
for particular statutes which were consistent both with the literal
meaning of these statutes and with other legislation in force. At the
same time, law as integrity provided that the courts should ground
the interpretation of statutory legislation upon genuine considera-
tions of political morality. In consequence, the courts were required
to assess the implications for any given dispute of the general
public policies articulated in statute law, and to determine the
relationship between these policies and the background principles
of political morality, like justice or procedural fairness, which
limited the implementation of all policy within the community.
Dworkin denied that these methodological requirements could be
set aside by appeal to theories of judicial interpretation which
identified the meaning of statutory legislation with the actual
purposes or intentions of its authors. That is, he rejected the
appropriateness to the analysis of adjudication of any version of
the speakers meaning theory of interpretation which presupposed
that statute law was to be construed as 'an act of communication ...
understood on the simple model of speaker and audience'. 13 For
Dworkin, the form of interpretation essential to law as integrity was
purposive rather than conversational. This meant that the purpose or
intention of a statute was always ascribed to it by the courts
through procedures of constructive interpretation. Thus, so far
160 The Defence of Natural Law

from being obliged to attend to the original legislative history of


statute law, the courts were at liberty to develop purposive
interpretations of its meaning which took account of changing
social and economic circumstances, and of significant shifts in
public conceptions of political morality.
The model of judicial interpretation which Dworkin derived from
the theory of law as integrity had a quite particular application to
the analysis of constitutional adjudication in America. Since the
United States Constitution underwrote the most basic arrangements
of political power in American society, he argued, the courts were
subject to a special institutional obligation to address fundamental
questions of political morality in its interpretation. It was for this
reason that Dworkin rejected what he classed as historicist theories
of constitutional adjudication. For Dworkin, theories of judicial
historicism were distinguished both by their exclusion of contro-
versial questions of political morality from constitutional adjudica-
tion, and by their demand that judges should ground their
interpretations of the Constitution upon the principles rendered
explicit in the declared intentions of its historical authors. However,
Dworkin insisted that the ideal of political neutrality implied by
jurists of original intention was unrealizable - not because of any
compelling principle of political morality, but because of the
purposive element of constructive interpretation which he regar-
ded as running through all adjudication.
In 'Constitutional Cases', Dworkin had called for the formulation
of a constitutional jurisprudence which would overcome the
opposition between the positivism of orthodox theories of judicial
passivism and the instrumentalism that marked standard defences of
judicial activism. In Law's Empire, he claimed that exponents of
judicial passivism had adhered to a narrowly conventionalist
theory of law and adjudication, which they generally supported
with a majoritarian principle of political fairness in explaining the
meaning of the constitutional separation of powers, whereas
defenders of judicial activism had espoused a radical form of legal
pragmatism.
According to Dworkin, judicial passivists had identified the
rights secured by the Constitution exclusively with those provided
for in the literal terms of the constitutional text. In doing this,
passivists had viewed the decision of controversial cases of con-
stitutional law as a form of judicial legislation, which involved a
process of unacknowledged amendment of the original Constitution.
Legal Philosophy and the Liberal Theory of Justice 161

As a result, most theorists of judicial passivism had excluded any


purely judicial determination of constitutional rights, by assuming
that the courts remained bound by an absolute constitutional
obligation to conform to the decisions of the elective institutions
of government in all questions of political morality or public policy
which were not covered by the literal provisions of the Constitution.
Judicial activists, by contrast, had emphatically denied that the
courts were bound by any obligation of deference to the decisions
of such elective institutions, or that the courts were required to
restrict the range of authentic constitutional rights to those detailed
in the literal terms of the original Constitution. On the contrary,
theories of judicial activism implied that the courts were licensed to
legislate new constitutional rights, whenever this promoted favoured
social or economic objectives.
Dworkin repudiated both passivism and activism as theories of
constitutional practice and adjudication. The classic theories of
judicial passivism, he argued, significantly misrepresented the
practice of the courts, chiefly through their adoption of the
conventionalist view that the decision of controversial cases of
constitutional law should be governed by the literal terms of the
Constitution. Moreover, by appealing to a majoritarian principle of
fairness as a justification for the separation of powers, passivism
obscured the crucial relationship between constitutional adjudica-
tion and principles of political morality, like procedural due process
and justice, which were expressly enshrined in the Constitution as
limitations on the will of the political majority. Judicial activism, on
the other hand, proved fundamentally subversive of the standard
methods of legal reasoning. By ascribing quasi-legislative powers to
the courts, Dworkin insisted, judicial activists had created the false
impression that the courts were relieved of any responsibility to
ground the determination of constitutional rights upon a disci-
plined interpretation of 'the Constitution's text, the history of its
enactment, prior decisions of the Supreme Court' and of all the
'long-standing traditions of ... [American] political culture'.14
Dworkin concluded that the procedures of constitutional adjudi-
cation followed by the American courts were best examined in
terms of the theory of law as integrity. Law as integrity required the
courts to adjudicate hard cases in constitutional law on the
assumption that the United States Constitution consisted in 'the
best available inte~retation of American constitutional text and
practice as a whole'. 5 Accordingly, the theory directed the courts to
162 The Defence of Natural Law

determine the schedule of rights underwritten by the Constitution


through a procedure of reasoning concerned, not only with the
principles of justice, fairness and procedural due process implicit in
the original text of the Constitution, but also with the continuous
reinterpretation of the meaning of these principles as conducted
throughout the entire history of constitutional amendment and
adjudication.
In contrast to judicial historicism, then, law as integrity imposed
no institutional obligation upon the courts either to attach a decisive
importance to the intentions of the original framers of the Constitu-
tion- as declared at the historical moment of its promulgation- or
to regard these intentions as determining the range of rights to be
recognized in subsequent judicial interpretations of its meaning.
Indeed, law as integrity came close to the spirit of judicial activism,
in the sense that it permitted the courts to specify authentic
constitutional rights which were not explicitly provided for in the
literal text of the Constitution. However, Dworkin emphasized that
law as integrity diverged from judicial activism because it deman-
ded that such rights should be established through disciplined
procedures of adjudication, rather than by arbitrary legislative
fiat. Above all, integrity demanded that judicial decisions in hard
cases of constitutional law should be made consistent both with the
literal provisions of the Constitution, and with the principles of
political morality which represented their most coherent justifica-
tion.
Under law as integrity, then, the courts were indeed bound to
recognize that the United States Constitution conferred certain
legislative powers on the specifically elective institutions of the
American system of government. Even so, the theory differed from
orthodox formulations of judicial passivism in imposing no un-
conditional duty upon the courts to defer to the decisions of the
democratically accountable institutions of government in the inter-
pretation of the meaning of the entire constitutional scheme. Instead,
law as integrity directed the courts to interpret the Constitution on
the understanding that it enshrined principles of political morality
which were intended to protect the rights of individuals and
minorities against institutional decisions made on behalf of the
democratic majority.
In the latter respect, Dworkin claimed that the procedures of
constitutional adjudication defined by law as integrity were con-
sistent with the primacy assigned to individual moral rights in
Legal Philosophy and the Liberal Theory of Justice 163

American political culture. This claim was the basis for his
conclusion that the theory of law as integrity accorded with the
principles of political morality which represented the best justifica-
tion of the whole legal system of the United States. In this way, law
as integrity underscored the fundamental unity of the descriptive
concerns of legal analysis and the normative concerns of moral and
political philosophy. More specifically, law as integrity provided a
jurisprudential foundation for the reconstruction of the liberal
theory of justice - a theory which, for Dworkin, constituted the
most philosophically compelling vindication of the primacy of
individual rights as a normative principle of political morality.

ii. THE LmERAL THEORY OF JUSTICE: INDMDUAL RIGHTS


AND THE IDEA OF LAW AS A COMMUNITY OF PRINCIPLE

Dworkin did not present law as integrity as merely a theory of law


and adjudication. He also considered integrity to be a distinct
political virtue of law and legal institutions, which supplemented
the more traditional political values of fairness, justice and procedural
due process. In combination, these four virtues of legal order made
up the theory of political morality defended in Law's Empire.
According to this theory, the idea of fairness had application to
the constitution of the standing political institutions of a given
community, and suggested that political power should be distrib-
uted throughout these institutions so as to represent accurately the
different interests of its members. The idea of justice concerned the
substantive decisions of political institutions, whether or not these
institutions were fairly constituted. Justice required that all such
institutional decisions should both respect personal rights and
liberties, and work to promote a morally principled distribution
of social and economic resources among the individual members of
the community. The idea of procedural due process concerned the
conduct of the institutions of government which were responsible
for determining whether particular citizens stood in breach of the
legal rules of the community. Hence, the principles of procedural
due process required that the courts and executive institutions of
government should abide by the precepts of natural justice in the
adjudication of disputes between the individual and the community
and in the coercive enforcement of the law generally.
164 The Defence of Natural lAw

Integrity, however, was a formal virtue of legislation and


adjudication, and required that a legal system should be coherent
in terms of internally self-consistent principles of political morality.
Specifically, integrity required legislators to enact statutes, and
judges to interpret legal rules and precedents, in accordance with
the moral principles that informed the entire system of law for
which they, as officials, were responsible. Hence, integrity deman-
ded not only that like cases be treated alike under the existing legal
conventions of a community - the standard principle of procedural
justice - but also that the state itself should act on a single, coherent
set of principles of political morality, even when its subjects were
divided about what these principles should be.
Dworkin maintained that integrity conferred a special normative
authority upon the rule of law, in the respect that its structural
requirement of coherence worked to guarantee each individual
citizen a right to full equality of treatment under the principles of
justice, fairness and procedural due process accepted within his
community. It was because of this guarantee of equal treatment,
Dworkin argued, that law as integrity provided a better justification
than either conventionalism or pragmatism both for the monopoly
on lawful coercive force claimed by the modem sovereign state, and
for the legitimacy of the political obligation to comply with the law
which the modem state imposed upon its subjects. In particular, the
theory explained the conditions under which a state could actively
promote the civic virtues of fraternity and community that Dworkin
regarded as essential to the generation of any authentic principle of
legal and political obligation.
Dworkin denied that the obligation to comply with the law was
to be understood in terms of the ideas of consent and voluntary
promissory agreement favoured by the mainstream theorists of
classical liberalism. Instead, he insisted that this obligation was,
ideally, a fratmu~l obligation, which should be examined as part of a
class of so-called associative or communal obligations. These obliga-
tions bound their subjects, not on account of their choice or
agreement, but because of their mutual participation in social
practices which satisfied certain formal conditions of reciprocity.
For Dworkin, associative obligations imposed an authoritative duty
of compliance only when the distinct rights and responsibilities
constituting a social practice were distributed according to some
consistent principle of reciprocity - that is, when these rights and
Legal Philosophy and the Liberal Theory of Justice 165

responsibilities were acknowledged to have equal application to all


the participants in the practice.
The members of a social practice so constituted, Dworkin
suggested, would characteristically tend to view their obligations
as being both special to the practice, rather than as universally
binding duties, and fully personal- as running from 'each member
to each other member, not just to the group as a whole in some
collective sense' .16 The members of such a practice would also tend
to assume that their obligations flowed from a more general
obligation falling upon each member to show concern for the well-
being of the other members of the practice. In this way, the
participants in a social practice would be encouraged to conceive
their obligations as organizing an association, or community, which
manifested equal concern for all its members throughout its entire
system of explicitly rule-defined rights and duties. When these
formal conditions of reciprocity were satisfied, Dworkin argued, a
social practice would generate genuine fraternal obligations which
bound its members irrespective of their actual choice or agreement.
According to Dworkin, any legal system governed by the
constraints of integrity would naturally come to constitute an
authentic associative community, and, in doing so, would acquire
the normative authority to enforce the general duty of compliance
with law as a matter of fraternal obligation. Hence, law as integrity
succeeded, as theories of legal conventionalism did not, in confer-
ring a moral status upon the obligation to comply with law which
sufficed to vindicate the legitimacy of the rule of law as a form of
political regulation.
Dworkin claimed that legal conventionalism represented an
impoverished theory of political association, and that the deficien-
cies of the theory followed from the preference of conventionalist
jurists for what he called a rulebook conception of community and
legal order. Dworkin did not dispute that conventionalist jurists
often recognized that legal subjects were legitimately bound by a
general obligation to comply with the rules of their community,
whenever these rules fulfilled the community's accepted conditions
of legal validity. Nevertheless, Dworkin emphasized that conven-
tionalists characteristically held that the limits of the obligation of
compliance with law were described by the explicit content of such
rules. In consequence, conventionalists did not view this general
duty of compliance as a fraternal obligation. On the contrary, they
166 The Defence of Natural Law

regarded the rule of law as being essentially a compromise between


antagonistic interests, rather than as the public embodiment of some
common commitment to principles of justice and fairness which
were independent sources of political obligation.
In contrast to conventionalism, Dworkin argued, the theory of
law as integrity did not assume that the general obligation of
compliance with law in a given community was exhausted by the
explicit content of its legal rules. Instead, law as integrity allowed
for the derivation of authentic political rights and duties from the
reciprocally binding principles of justice and fairness presupposed
by the conventional legal rules of a community. Hence, the theory
grounded the duty of compliance with the rule of law upon the
entitlement of each legal subject to the equal concern of his commu-
nity, as this concern was publicly defined by the principles of
political morality underlying its formal legal arrangements. In
doing so, law as integrity brought out the conditions under which
a rule of law could come to be accepted by its subjects as organizing
a genuine community of prindple.
Dworkin believed that the analysis of law as a community of
principle undermined the distinction assumed by positivist jurists
between legal norms and the norms of social morality. However,
this communitarian theory of political association involved no
adherence on Dworkin's part to the ethical and metaphysical
viewpoints integral to the classical and medieval traditions in
natural law philosophy. He did not seek to defend the theory by
specifying any morally determinate conception of the common
goods and values implied in the idea of a political community.
Still less did he argue that the theory involved a teleological
justification of the moral authority exerted by a community
through its legal and constitutional arrangements. In fact, Dworkin
envisaged no incompatibility between the political communitarian-
ism expounded in Law's Empire and his endorsement of the
deontologically grounded schedule of individual rights which
Rawls took to embody the moral foundation of the liberal theory
of justice.
In 'Liberalism'P a key essay first published in 1978, Dworkin
reconstructed what he called the constitutive political morality of
liberalism in terms of an essentially I<antian principle of equality.
This principle required government to remain 'neutral on ... the
question of the good life', and to ensure that its public decisions
regarding social and economic policy be kept fully 'independent of
Legal Philosophy and the Liberal Theory of Justice 167

any ~articular conception of the good life, or of what gives value to


life'. 8 For Dworkin, the requirement of 'official neutrality' towards
rival conceptions of the good neither presupposed a substantive
theory of human nature, nor entailed an atomistic or individualistic
analysis of political society. On the contrary, official neutrality on
the part of the governmental authority towards different forms of
moral commitment was 'a principle of political organization ...
required by justice' .19
In general, Dworkin insisted that a system of law which nurtured
the virtues of fraternity and community offered the most appro-
priate political context for the public exercise of the individual rights
underwritten by the liberal theory of justice. To this extent, the ideal
of law as a community of principle defended in Law's Empire
vindicated the legal and political arrangements of modem liberal
society which Dworkin endorsed throughout his work.
However, the communitarian conception of political association
carried with it a justification for the legitimacy of modem liberal
society which diverged markedly from the voluntarist analysis of
legal obligation developed by political philosophers standing in the
tradition of the social contract. Under his conception of political
community, Dworkin understood the state to be a distinct collective
entity, which stood as an autonomous source of moral and legal
obligation. Accordingly, he emphatically denied that a political
community was an instrumental association which merely provi-
ded institutional facilities for the satisfaction or reconciliation of the
private interests of its individual members. Instead, he affirmed that
the legal and institutional structure of an integrated political
community enshrined certain publicly defined values, like frater-
nity and equality, which were neither the product of, nor reducible
to, the contractual choices and agreements of its subjects.
In these respects, Dworkin's defence of law as a community of
principle aligned him with the tradition in political philosophy of
Aristotle, Rousseau, Burke and Hegel, rather than with the work of
Hobbes, Locke and the other theorists who laid the philosophical
foundations of modem liberalism. In one sense, the idea of law as a
community of principle was a testament to the continuing relevance
for modem society of the Aristotelian conception of the state - or
polis- as an arena of virtue, in which the citizen actively fuHilled his
political nature under a reciprocally enforceable system of rights
and duties that bound both ruler and subject by reason of shared
and publicly defined principles of justice. likewise, the contrast
168 The Defence of Natural Law

which Dworkin drew between the communitarian and rulebook


interpretations of political society corresponded roughly to Rous-
seau's key distinction between the general will, which embodied the
complex of publicly defined principles and policies enforced by the
state through the exercise of its sovereign powers, and the will of all,
which embodied merely the aggregate of individual interests
comprising the democratic majority. In other, more important
senses, Dworkin's communitarian view of political association
recalled Hegel's determination, in the Philosophy of Right, to ground
the legitimacy of the modern constitutional state and its system of
law in those customary and tradition-laden forms and institutions
of social life which, for Hegel, could not by definition be brought
into being through any process of contractual agreement.
Nevertheless, Dworkin did not formulate any teleological princi-
ples of political legitimacy, like those underlying the Aristotelian
polis and the Hegelian Sittlichkeit, which allowed the state to impose
a moral and cultural uniformity upon civil society. Even less did he
call for that total absorption of the individual citizen into the
collective personality of the state which theorists like Popper and
Talmon believed to be the logical consequence of the political
philosophy of Rousseau and Hegel. In fact, in 'Liberty and Liberal-
ism','1D Dworkin affirmed the moral and intellectual freedom of the
individual person, which Mill had defended in On Liberty, as an
overriding imperative of the liberal theory of justice. In other
contexts, he was explicit that this background right to moral
freedom specifically prohibited the legal enforcement of public
morality,21 that it entailed a permissive legal policy towards the
private enjoyment of pomography,22 and that it required the state
to restrict public support for the arts to forms of indiscriminate
subsidy which worked to protect the diversity of liberal culture.23
Dworkin also denied that an abandonment of the voluntarist
analysis of political obligation implied any necessary rejection of
liberalism as a normative theory of political morality. He claimed
only that the structure of liberal society should be defended in
terms of non-voluntarist principles of political legitimacy. Accord-
ingly, in 'Justice and Rights' ,2 a detailed critique of A Theory of
Justice dating from 1973, Dworkin attached special importance to
the hypothetical character of the model of the social contract from
which Rawls derived the principles of justice as fairness. The social
contract was so constructed, he argued, that it supplied no
justification for enforcing the principles of fairness by reference to
Legal Philosophy and the Liberal Theory of Justice 169

the voluntary choice or agreement of its parties. Rather, both the


liberal constitution demanded under the first principle of justice as
fairness, and the particular standard of distributive justice deman-
ded under the second, were required by reason of the fundamental
egalitarian presupposition of political morality which grounded the
legitimacy of the social contract itself: namely, the 'natural right of
all men and women to equality of concern and respect'.25
Dworkin followed Rawls in basing the liberal theory of justice
upon the essentially non-libertarian right to equal concern and
respect. However, Dworkin did not construe this egalitarian
principle of political morality as a natural right which possessed
the same sort of metaphysical status that Hobbes had assigned to
the idea of the right of nature. Indeed, he firmly repudiated one
central political implication of the original Hobbesian philosophy of
natural right. In the article 'What Rights Do We Have?',26 Dworkin
explicitly criticized the tendency of postwar liberal theorists, like
Isaiah Berlin, to reproduce the classic Hobbesian definition of
political liberty as the absence of contraints imposed by govern-
ment. This view of political freedom, he suggested, had served
only to establish a false opposition between the political ideals of
liberty and equality.
Dworkin rejected the so-called negative definition of political
liberty associated with the tradition of Hobbes. In doing so, he
asserted that there existed no general right to liberty in the same
sense in which there indisputably existed a general right to equality
of concern and respect. Thus, while acknowledging that there were
distinct liberties enshrined in the United States Constitution and the
Bill of Rights, such as the rights to democratic participation and due
process of law, he emphasized that the moral authority attaching to
these liberties derived not from a general right to liberty, but from
the background right of each citizen to treatment as an equal.
For Dworkin, the right to equal concern and respect provided the
final ground of justification not only for the individual freedoms
endorsed by the classical theorists of liberalism, but also for the
kind of institutional constraints upon their exercise necessary to the
maintenance of organized political society. This was why he
argued, in 'Liberty and Uberalism', that the moral and political
freedoms which Mill had defended in On Liberty should be
interpreted in terms of the foundational right to equality of concern
and respect. Mill, he concluded, was essentially a moralist, who had
distinguished between 'liberty as license', which marked the degree
170 The Defence of Natural Law

to which a person remained 'free from social or legal constraint',


and 'liberty as independence', which related to the ethical idea of
'the status of a person as independent and equal rather than
subservient'. Accordingly, Mill had recognized no ultimate contra-
diction between the enjoyment of moral and intellectual freedom by
the individual person and the enforcement of legal constraints, like
those prohibiting murder and theft, which protected 'the political
independence of citizens generally'.27 On the contrary, Dworkin
insisted, Mill had taken these constraints to derive from the same
egalitarian principle of political morality which justified the very
liberties that they restricted.
Dworkin claimed that the liberal theory of justice was distin-
guished by its acknowledgement of the complex interrelationship
between the rights and liberties of the individual, as guaranteed
under the law and constitution of a society, and policies of state,
like redistributive taxation and reverse discrimination, which were
designed to promote greater social and economic equality through-
out the wider political community. It was in these terms that
Dworkin defended the policy of reverse discrimination in 'Reverse
Discrimination',28 a seminal article first published in 1976, and in
subsequent statements about the Bakke case.29
In general, Dworkin maintained that public debate about reverse
discrimination in the United States had been confused by the
appeal, of supporters and opponents alike, to arguments about
individual rights and the constitutional principles which were
alleged to secure them. However, Dworkin argued that the
legitimacy of programmes of reverse discrimination in education
and employment hinged ultimately on considerations of policy
rather than principle, and that, in consequence of this, such
programmes had always to be defended in terms of the justice of
the social and economic goals which they helped to realize.
Accordingly, Dworkin did not accept that the policy of reverse
discrimination involved any necessary violation of the moral and
political rights of the individual as enshrined in the United States
Constitution.
In 'Reverse Discrimination', for example, Dworkin insisted that
the provisions of the Fourteenth Amendment to the Constitution
guaranteeing equal protection under the law neither prohibited all
forms of racial classification, nor ascribed a right to equality to
individual citizens which automatically invalidated programmes of
reverse discrimination. Dworkin did not dispute that policies of
Legal Philosophy and the Liberal Theory of Justice 171

reverse discrimination placed certain individuals at a disadvantage


by reason of the racial classifications which they employed. Never-
theless, he denied that the equal protection clause of the Fourteenth
Amendment enshrined a right to equal treatment in the distribution
of social opportunities and economic resources. What the clause did
guarantee, he contended, was a right to treatment as an equal, which
derived from the more abstract principle of political morality
requiring governments to act towards their subjects with equal
concern and respect. In this sense, the practice of reverse discrimi-
nation remained entirely constitutional, since it actively promoted a
general policy which respected 'the right of all members of the
community to be treated as equals'.30
The arguments which Dworkin advanced in support of reverse
discrimination made clear his determination to resist any narrowly
libertarian interpretation of the political morality of liberalism. The
arguments also indicated his determination to reject the implication,
widespread in the work of modern political libertarians, that the
only possible justification for the policies of state demanded by the
egalitarian principles of social justice was a form of maximizing
utilitarianism which subverted the integrity of individual rights. In
these respects, the defence of reverse discrimination established the
major areas of disagreement about the practical requirements of the
philosophy of liberal constitutionalism which divided Dworkin
from Hayek and Oakeshott.

iii. DWORKIN AND HAYEK

Dworkin focused on the special features of judge-made law as a


corrective to the preoccupation of the mainstream legal positivists
with statutory legislation as a form of political regulation. In doing
so, Dworkin confirmed Hayek's conclusion that the legitimacy of
civil adjudication derived from the adoption by the courts of a
principled attitude towards the law. Indeed, as a formal require-
ment of judicial method, Dworkin's idea of integrity closely
paralleled the idea of universalizability which Hayek had pro-
posed as a principle of legal justice in the theory of law and
adjudication outlined in Law, Legislation and Liberty. These parallels
reflected an underlying agreement on the part of the two theorists
that the political morality of individual rights central to the
philosophy of liberal constitutionalism was to be vindicated
172 The Defence of Natural Law

through an analysis of the procedures of adjudication which had


developed in the tradition of the common law.
Nevertheless, Dworkin did not follow Hayek in identifying the
morality of liberal constitutionalism with the defence of free market
capitalism. Hayek identified the principles of political morality
which governed civil adjudication with the rights to property and
freedom of contract necessary to the proper functioning of the free
market economy. Dworkin, by contrast, specified these principles in
terms of the right to equality of concern and respect which he took
to embody the foundational justification for the moral and political
values central to the tradition of Western liberalism.
In 'Liberalism', Dworkin acknowledged the crucial historical
relationship between the liberal political settlement in America
and the free market as an institution of economic organization. By
the same token, though, he suggested that the system of free market
capitalism should be understood as being a strategy for achieving
the ends of human equality fundamental to the philosophy of
liberalism. As a result, he claimed that significant modifications to
the structure of the free market economy were demanded by the
egalitarian principles of justice that stood at the heart of the
constitutive political morality of liberalism. In claiming this,
Dworkin did not mean to suggest that the liberal theory of justice
licensed the sort of collectivist forms of social and economic
organization which Hayek regarded as being inherently subversive
of individual rights. In marked contrast to Hayek, he was clear that,
when guided by the principles of justice as fairness, the concern of
modern governments with the pursuit of greater social and
economic equality did not necessarily involve their adoption of
totalitarian methods of political control. Indeed, he insisted that the
political morality of liberalism was incompatible with any theory of
distributive justice which undermined the rights to private property
and freedom of economic choice guaranteed under the liberal
constitution.
In 'What Is Equality?',31 a two-part article published in Philosophy
and Public Affrlirs in 1981, Dworkin contrasted two principles of
equality governing the distribution of economic goods and social
opportunities: the principle of equality of welfare, which required that
social resources should be distributed or transferred in order to
promote the equal welfare of the individual members of a society;
and the principle of equality of resources, which provided merely for
Legal Philosophy and the Liberal Theory of Justice 173

the distribution and transference of social resources necessary to


secure maximum equality between individuals in their share of
these resources. Dworkin concluded that the principle of equality of
resources was essential to any defensible theory of what he termed
distn"butional equality, and that this principle actually presupposed
both the private ownership of social resources and the other main
institutions of the free market economy.
Subsequently, in Law's Empire, Dworkin claimed that it was a
particular defect of theories of equality of welfare - and of theories
which provided for full material equality in the distribution of goods
- that they required governments to promote equality between
citizens by acting directly to 'design and distribute' property
within sodety.32 For Dworkin, such theories tended to imply that
the economic choices of individuals about the private use of their
property were ultimately competitive with the public responsibility
of governments to promote maximum distributional equality
throughout society at large. In consequence, welfare-based theories
of equality left it unclear why governments should not enforce some
legally binding principle that obliged individuals to refrain from
any private decisions which were likely to subvert the equal
distribution of wealth within society.
It was the special virtue of theories of equality of resources, by
contrast, that they recognized no conflict between the permissive,
self-interested attitude of individuals towards the use of their own
property - which remained a matter of private choice - and the
public obligation falling upon a government to treat individuals as
equals in its collective decisions regarding the distribution of
property and other resources. For Dworkin, such theories required
only that governments should aim to make shares in social
resources sufficiently equal to establish appropriate public condi-
tions for the self-interested disposal of property by private indivi-
duals. Accordingly, he argued that resource-based theories of
distributional equality allowed for the legitimacy of differing
amounts of wealth held by individuals - as these were determined
by the uninhibited economic choices of individuals concerning the
consumption and investment of their privately owned resources
under conditions approximating to those of the free market.
However, in Law's Empire, Dworkin carefully distinguished
theories stressing equality of resources from what he called
libertarian theories of distributional equality. Libertarian theories
174 The Defence of Natural Law

supposed that individuals held natural rights to the use of their


property, and, hence, that the only morally legitimate functions of
government were those necessary to protect the unrestricted
exercise of these rights. Dworkin emphasized that, in contrast to
libertarian theories of distribution, the principle of equality of
resources did not rule out the assumption by governments of
redistributive responsibilities appropriate to the maintenance of
the sort of publicly financed system of welfare rights underwritten
by the liberal conception of justice as fairness. For Dworkin, such
rights as those to fair equality of opportunity, or to the equal
allocation of resources, were examples of trump rights: that is,
rights which were absolute requirements of the principles of
political morality that comprised the ultimate ground of justifica-
tion for the political and economic institutions of society.
Unlike Hayek, then, Dworkin insisted that the institutions of the
market economy were morally indefensible whenever they contra-
vened the scheme of individual rights essential to the idea of
equality informing the liberal theory of justice. It was in these
terms that he condemned the libertarian social and economic
policies pursued by the Reagan Administration during the ear~
1980s. For example, in 'Why liberals Should Care about Equality',
an article first published in 1983, he claimed that the inequalities
generated by the policies of the Reagan Administration violated the
principle of political morality directing governments to treat their
subjects with equal concern and respect. Indeed, he submitted that
these policies had been so designed as actually to require 'some
people to accept lives of great poverty and despair, with no
prospect of a useful future, just in order that the great bulk of the
community [might] have a more ample measure of what they
[were) forever denied'.34
The underlying justification which Dworkin ascribed to the
libertarian policies of the Reagan Administration rested on a crude
maximizing utilitarianism - in the sense that, for him at least, the
policies involved an attempt to balance the social injustice suffered
by a minority of citizens against the longer term economic prosper-
ity of American society as a whole. In this respect, Dworkin was
clear that the attack on the institutions of the welfare state mounted
by the New Right in America, and by the other contemporary
theorists of economic libertarianism, threatened precisely the poli-
tical morality of individual rights which Hayek believed to be
secured only under the system of free market capitalism.
Legal Philosophy and the Liberal Theory of Justice 175

iv. DWORKIN AND OAKESHOTI

In contrast to Oakeshott, Dworkin did not associate the political


morality of liberalism with the ideas central to the philosophical
tradition of natural right. He explicitly rejected the Hobbesian view
that individual liberty consisted in the absence of governmental
constraint. Instead, he insisted that the political freedom of the
individual was realized through policies of state which were
justified by the essentially non-libertarian right to equality of
concern and respect.
In 'Liberalism', Dworkin associated the American liberal settle-
ment with the political consensus created during the era of the
Rooseveltian New Deal. In doing so, he made clear that liberalism
allowed for the ascription of legitimate managerial powers to the
state, including those which enabled government to combat
extreme inequalities of wealth, to create conditions for the racial
equality demanded by social justice, and to intervene selectively in
the economy in order 'to promote economic stability, to control
inflation, to reduce unemployment, and to provide services that
would not otherwise be provided'.35 Despite this endorsement of
the New Deal consensus, Dworkin did not defend the teleocratic
idiom of government in any way that compromised the morality of
liberal constitutionalism to which Oakeshott was committed. At any
rate, he acknowledged no tension between the maintenance of a
stable rule of law and the implementation by central government of
interventionist policies which were supportable in terms of the
egalitarian political morality that he found embodied in the New
Deal.
In developing his theory of law and adjudication, Dworkin
consistently upheld the normative authority of the principles of
procedural legal morality. In 'Liberalism', for instance, he empha-
sized that the liberal theory of justice was itself distinguished by the
priority which it assigned to the procedural rights that biased the
criminal process strongly against the conviction of the innocent.
Accordin~, in important public statements about the freedom of
the press, he insisted that the special privileges which guaranteed
the liberty of the press, like the Shield Laws protecting confidential
sources from disclosure, were properly overridden by the more
basic constitutionally assured right of a defendant to a fair trial.
In On Human Conduct, Oakeshott outlined a theory of civil
adjudication in which he expressly denied that the courts were
176 The Defence of Natural Law

free to base judicial decisions on considerations of public policy. For


Oakeshott, the exclusion of public policy as a basis for adjudication
was demanded by the procedural morality which he took to ground
the legitimacy of the rule of law as a form of political regulation.
Dworkin likewise recognized that the exclusion of public policy as a
consideration in judicial reasoning was essential to any morally
defensible procedure of civil adjudication. Indeed, this recognition
was central to his rejection of pragmatism as a theory of law and
adjudication. In rejecting pragmatism, he insisted that judges had
no authority to determine the social or economic policies of their
community, or to adjudicate without regard to the conventional
sources of law. At the same time, he affirmed that the courts were
subject to an absolute obligation in political morality to satisfy the
legitimate expectations of legal subjects that judicial decisions
would be congruent with the conventionally established law of
their community.
In these respects, Dworkin fully agreed with Oakeshott that the
maintenance of the procedural constraints which protected the
expectations generated by a rule of law was a primary requirement
of legal justice. Nevertheless, Dworkin submitted that the moral-
political ideal of protected expectations under the law could be
honoured only by the methods of adjudication described in the
theory of law as integrity.
Dworkin did not regard the theory of law as integrity as
involving any departure from the methods of adjudication actually
adopted by the courts. Oakeshott, of course, claimed that courts
were not permitted to decide cases by appeal to substantive
principles of justice and morality that had no foundation in
existing law. Dworkin, by contrast, believed that law as integrity
allowed the courts to adjudicate in terms of principles of political
morality which were not explicitly specified in the legal conventions
of the community. However, Dworkin certainly did not accept that
the theory of integrity liberated the courts from the procedural
morality of law and adjudication which Oakeshott considered to
secure the justice of a legal system. Indeed, Dworkin concluded
Law's Empire by describing integrity as an inclusive, rather than pure,
idiom of adjudication, which should, ideally, remain responsive to
the complex diversity of substantive and procedural values embo-
died in any given system of law. In this sense, the theory of integrity
was plainly not intended to license the courts to adjudicate
exclusively by reference to substantive principles of justice. On
Legal Philosophy and the Liberal Theory of Justice 177

the contrary, integrity bound the courts to interpret established


legal conventions in terms of 'a single and coherent vision of ~tice
and fairness and procedural due process in the right relation'. 37
The theory of law as integrity, then, required that the courts
should weigh considerations of justice against those principles of
fairness and procedural due process which, for Dworkin, were
always tied to, and regulative of, specific political institutions
within society. Not only did principles of institutional fairness,
like the doctrine of legislative supremacy, and principles of proced-
ural due process, like the doctrine of adherence to precedent,
frequently conflict with the intuitively compelling demands of
justice in the context of particular disputes. On Dworkin's
account, these principles also imposed overriding institutional
constraints which often prevented the courts from settling disputes
in accordance with the pure imperatives of justice.
Unlike Oakeshott, Dworkin recognized the existence of no
absolute dualism between law and community. In Law's Empire,
he rejected the rulebook conception of legal order favoured by the
positivist jurists. In its place, he offered the utopian theory of law as
a community of principle. This theory brought out the central
respects in which the maintenance of an effective rule of law
presupposed a commitment on the part of its subjects to the
principles of political morality embodied in the practices and
traditions of their community.
Nonetheless, Dworkin did not envisage his theory of political
communitarianism as sanctioning the legal regulation of society in
any of the teleocratic forms which Oakeshott associated with the
idea of the state understood as a universitas. On the contrary,
Dworkin defended the theory of law as a community of principle
because it seemed to him to provide the most coherent vindication
of the legitimacy of precisely the legal and constitutional order of
modem liberal society which Oakeshott associated with the idea of
the state as a societas. Indeed, at no stage in his work did Dworkin
prescribe any legal regulation of society more extensive than that
necessary to fulfil the Rawlsian requirements of social justice.
It is true that Dworkin argued for an intimate relationship
between the legitimacy of the rule of law and the principles of
distributive justice as specified by Rawls. It is equally true that
Oakeshott defined the basic principles of legal morality to the
exclusion of all considerations of distributive justice. However, in
'Justice and Rights', Dworkin claimed that Rawls's arguments about
178 The Defence of Natural Law

justice were rooted in his preference for the procedures in political


philosophy formulated by the great social contract theorists. For
Dworkin, Rawls's adherence to contractualist procedures reflected a
core commitment to an essentially right-based theory of political
obligation: that is, a theory in which normative priority was
assigned to 'the independence rather than the conformity of
individual action' and to the fundamental 'value of individual
thought and choice'. At the same time, he argued that Rawls had
deliberately structured his model of the social contract so as to
exclude so-called goal-based theories of political morality: that is,
theories of political morality, like Aristotelianism and utilitarianism,
which characteristically ascribed value to the welfare of the
individual only when this contributed to 'some state of affairs
stipulated as good quite apart from his choice of that state of
affairs'. 38 With this critique of A Theory of Justice, Dworkin made
clear the crucial respects in which Rawls's defence of social justice
cohered with the moral presuppositions of the philosophy of
modem liberalism - a tradition which Oakeshott, of course,
contended had come about through a decisive break with the
classical Platonic-Aristotelian tradition in political thought.
Dworkin and Oakeshott were not to be distinguished because of
any disagreement between them about the status of individual
rights as the primary value of political morality. They differed, in
part, over the degree to which the meaningful exercise of individual
rights depended upon a publicly regulated distribution of economic
goods and social opportunities, and in part over the extent to which
the political arrangements necessary to promote such a distribution
were compatible with the moral ideas central to the tradition of
modem liberalism. Dworkin and Oakeshott were divided funda-
mentally, however, in their adoption of deeply opposing philoso-
phical views about the reality of law itself. Whereas Oakeshott
defended an essentially voluntarist analysis of law and political
obligation, Dworkin examined law and adjudication more from
the standpoint of a naturalistic view of legal order.
Oakeshott did not accept the command theory of law in its
original formulation. Nonetheless, Oakeshott followed Hobbes in
interpreting the reality of law in terms of the philosophical ideas of
will and artifice - ideas which, he suggested, had led Hobbes to
assert 'the sovereignty of civillaw'.39 For example, he insisted that
the validity of law derived from the institutional circumstances of
its creation, rather than from its correspondence with any non-legal
Legal Philosophy and the Liberal Theory of Justice 179

principles of justice or morality. He likewise implied that the


distinctively legal rights and obligations of a given community
were to be identified more or less exclusively with those which
had a clear warrant in its conventional sources of law.
In these respects, Oakeshott upheld both a conventionalist view
of law and a rulebook conception of political association. Indeed,
much of his work tended to the Hobbesian conclusion that
the maintenance of an authoritative rule of law was required to
secure compromise or peace among its subjects, where this require-
ment arose because of the absence from modem society of any
rationally compelling agreement on first principles of justice and
political morality. It was certainly in this sense that Oakeshott
claimed that, for Hobbes, there could exist no general obligation
of fidelity to law which remained distinct from the duty to comply
with the formal provisions of the civil law of particular political
communities.
Dworkin dissented from both the rulebook model of political
society and the theory of legal conventionalism which he associated
with it. He affirmed that there existed authentic legal rights and
obligations whose grounds lay not in conventionally established
rules of law, but in the principles of political morality instantiated in
the practices of the wider community. In doing this, he challenged
the kind of radical moral and metaphysical scepticism which
Oakeshott argued had prompted Hobbes to ground all principles
of justice and political morality, together with the rights and
obligations that they secured, upon the authoritative stipulations
of a civil sovereign.
As opposed to the voluntarist view of law, Dworkin made it clear
that principles of political morality provided a basis for the
objective determination of legal rights and duties through rational
procedures of judicial deliberation which, as such, involved no
element of arbitrary legislative discretion. This was why, in
important essays on the logic of adjudication,40 he rejected the
implication of the legal positivists that the judicial decision of hard
cases always demanded 'a choice rather than a decision forced by
reason'. Instead, he claimed that the adjudication of hard cases was
conducted on the understanding that judicial reasoning aimed at
'discovering, rather than inventing, the rights of the parties con-
cemed'.41 It was this naturalistic analysis of judicial deliberation, as
opposed to any assumption on his part of a rationally binding
consensus on fundamental issues of law and morals, which lay
180 The Defence of Natural lAw
behind Dworkin's contention in Taking Rights Seriously that there
frequently existed 'a single right answer to complex questions of
law and political morality'.42

v. INTEGRITY: LIBERALISM, LEGITIMACY AND NATURAL


LAW

In its underlying consonance with the rationalistic standpoint of


legal naturalism, Dworkin's view of law and adjudication was very
much closer than Oakeshott's to the concept of law and adjudica-
tion defended by Fuller. As did Fuller before him, Dworkin
emphasized not only the purposive quality of law, but also the
central importance of the idea of purpose in explaining the inner
logic of civil adjudication. In contrast to Fuller, however, he sought
to justify the procedures integral to the rule of law in terms of a
fully norm~~tive theory of political morality. Whereas the Fuller of
A111ltomy of the lAw argued merely that judicial reasoning was
guided by principles implicit in the conventional law of the
community, Dworkin examined such principles in their relation
both to the moral-political rights held by the individual citizen, and
to the requirements of distributive justice to which these rights gave
rise. Accordingly, Dworkin rejected the sort of formalistic view of
legal justice which Fuller adopted in The Morality of lAw. Far more
than Fuller, he recognized that the rule of law was a legitimate
procedure for the implementation of the public policies of a state -
including those policies which, like reverse discrimination, secured
objective conditions for the active exercise by the individual of his
moral and political rights in society at large.
Both Fuller and Dworkin asserted an internal connection between
the formal structure of the rule of law and supposedly permanent
principles of justice and morality. This was the central respect in
which the two theorists wrote from the natural law standpoint in
legal philosophy. Fuller explored the connection between law and
morality in terms of the idea of procedural natural justice. Dworkin
invoked the more political conception of law as integrity. Even so,
Dworkin was no more successful than Fuller in establishing an
internally sanctioned relationship between the concept of law and
universally binding principles of justice and morality.
As Dworkin specified it, the jurisprudential idea of law as
integrity disclosed certain conditions necessary for the ascription
Legal Philosophy and the Liberal Theory of Justice 181

of moral authority to the rule of law. Crucially, the idea of integrity


explained how a modem state could generate a fully fraternal
obligation of compliance with law and, in doing so, come to
constitute a genuine community of principle. The idea thus carried
with it the moral demand that each member of a modem political
community should be treated with equal concern, as determined by
the principles of political morality running through the legal system
of that community. Nevertheless, Dworkin conceded that political
communities might still enforce obligations of fraternity which were
unjust towards their members. Indeed, he allowed that the doctrine
of law as integrity did not formally prevent a genuine community
of principle from adopting a dominant conception of equal concern
which was defective, or which tended to 'violate rights of its
citizens or citizens of other nations'. 43
Dworkin also maintained that the idea of law as integrity served
to legitimate the monopoly on lawful coercive force claimed by the
modem state. The state had a stronger moral entitlement to the
exercise of this monopoly, he suggested, when its legal and
constitutional arrangements were structured in accordance with
internally coherent principles of political morality. In the end,
however, the specification of law as integrity, as provided in Law's
Empire, did not suffice to vindicate the legitimacy of the coercive
force exerted by the modem political order. This was so because the
bare structural requirement of integrity did not eliminate the
element of arbitrary coercion essential to the effectiveness of the
rule of law in societies, such as modem Western societies, whose
members were in radical disagreement about the principles of
political morality which offered the best justification for their legal
and political institutions.
In defending programmes of reverse discrimination, Dworkin
argued that the coercive restrictions which such programmes
imposed upon the liberty of the individual did not violate the
fundamental moral and political rights enshrined in the United
States Constitution. Dworkin held that the policy of reverse
discrimination was defensible in terms of the background right to
equality of concern and respect, the right which, for him, provided
the most convincing moral-political justification for the rights and
liberties formally specified in the original constitutional text.
Conversely, he insisted that policies of racial segregation unavoid-
ably infringed this constitutionally grounded right of every citizen
to equal concern and respect.
182 The Defence of Natural Lllw

Dworkin considered that policies of racial segregation in America


had been based in an essentially utilitarian principle of justification,
according to which the rights of certain citizens were permitted to
be overridden by policies that promoted the collective welfare of
the community. Policies of reverse discrimination, by contrast, he
believed to be supportable by principles of political morality that
respected the rights of all citizens. However, the plausibility of his
distinction between different racial policies, and indeed the success
of his whole case for reverse discrimination, depended on a
measure of unanimity about the principles of political morality
appropriate to the interpretation of the Constitution which Dwor-
kin himself acknowledged to be unobtainable in modem American
society. In the absence of such unanimity, it remains unclear why
supporters of racial segregation were debarred from defending
their objectives in terms of principled arguments about the sub-
stantive policy implications of the background moral rights pre-
supposed in the constitutional text. At any rate, there was no
reason, essential to the theory of law as integrity, why racial
segregation could not be justified, and reverse discrimination
excluded, through some coherent interpretation of the political
morality implicit in the Constitution. None of this should be taken
to mean that Dworkin was misguided in advocating reverse
discrimination as a policy of progressive social reform. By the
same token, though, the practical merits of his case for reverse
discrimination should not be taken to mean that the implementa-
tion of the policy by the state involved anything other than an
arbitrary exercise of coercive power against any citizen who
disputed the legitimacy of the principles of political morality
invoked in its justification.
Dworkin regarded the coercive powers of the modem state as
being limited by a background ri§!tt to civil disobedience. In the
articles 'Civil Disobedience' (1968) and 'Taking Rights Seriously'
(1970),45 he based this right in the claim, central to the idea of
constitutional government, that the state should conform to funda-
mental principles of political morality in the exercise of its legisla-
tive and executive powers. However, Dworkin's arguments for the
right to civil disobedience carried with them no guarantee that the
coercive force exerted by the state through the rule of law would
never be used in violation of the principles of political morality
favoured by at least some of its subjects.
Legal Philosophy and the Liberal Theory of Justice 183

Dworkin emphasized that the right to civil disobedience was an


essential component of the American political process. This was so,
he argued, because, in the American tradition, citizens had always
been recognized to hold 'certain fundamental rights against their
Government, certain moral rights made into legal rights by the
Constitution'.46 For Dworkin, this recognition implied that every
American citizen possessed a prima facie justification for disobeying
those laws and executive orders which he or she considered to
violate the basic moral-political rights conferred by the Constitu-
tion. Accordingly, Dworkin rejected any theory of compliance with
law which upheld a moral right to civil disobedience, but which
denied that the exercise of this right ever carried with it any legal
justification. Such theories were inadequate, he suggested, for cases
-like the disobedience of the civil rights activists and the opponents
of the Vietnam War during the 1960s - in which the constitutionality
of the decisions of the authorized political institutions of American
society remained in question. In the context of a doubtful law,
Dworkin insisted, the citizen was entitled to engage in civil
disobedience, provided that he was motivated by a conscientious
assessment of what the law itself required - with the consequence
that a responsible government was bound by a special obligation in
justice to show leniency towards any citizen who acted on a
reasonable judgment that the law offended against established
principles of political morality.
Of course, Dworkin did not assert an unconditional right to civil
disobedience. He accepted that the greater part of the law -
particularly the part which defined the social, economic and
foreign policy of the community - was legitimately determined by
democratic procedures of political decision. Indeed, he maintained
that every citizen had a general duty in justice to comply with the
rule of law, a duty which arose from the status of law as an
expression of 'the majority's view of the common good'.47 Dworkin
also recognized powerful arguments against official toleration of
acts of civil disobedience which threatened other citizens with
personal injury, or which impinged upon their constitutionally
assured rights and liberties. Hence, he claimed that the authorities
in America were subject to no obligation to exercise the same
leniency towards citizens who disobeyed civil rights legislation
that they had been bound to show towards those who defied laws
promoting policies of racial segregation.
184 The Defence of Natural Law

In claiming this, however, Dworkin called for a highly selective


official policy towards the toleration of civil disobedience. In fact, he
tended to restrict the occasions for the permissible exercise of the
right to civil disobedience to those sanctioned by inherently
controversial principles of political morality. The mere existence of
this background right, then, did not serve to remove the element of
arbitrary coercion from the legal arrangements of a community
whose members were in profound conflict about fundamental
principles of political morality - as had certainly been the case
with American society during the period of the civil rights agitation.
To this extent, Dworkin's defence of civil disobedience provided no
justification for the argument that the idea of integrity vindicated
the legitimacy of the rule of law which did not already presuppose
a preference on his part for the controversial political morality of
liberalism.
In Law's Empire, Dworkin formulated a pluralistic theory of
political morality, in which integrity, justice, fairness and procedur-
al due process were ranked as distinct virtues of legal order.
Nonetheless, the key requirement of integrity - that the rules
comprising a legal system should stand in an internally coherent
relation to its underlying principles of political morality - did not
exclude the possibility that the political institutions of a given
community might enact laws which imposed substantive injustice
upon certain, or all, of its members. Nor did this requirement of
integrity exclude the possibility that the constitution of these
political institutions might depart from the principles of fairness
generally respected within the community. Indeed, the basic
structural requirement of integrity did not even ensure that a rule
of law would be administered in accordance with accepted
principles of procedural due process. At any rate, the ideal of
integrity entailed no demand that a legal order which honoured it
should be structured by the specific principles of justice, fairness
and procedural due process that made up the constitutive political
morality of liberalism.
In much of his work, Dworkin implied an intimate connection
between his analytical theory of law and the liberal conception of
justice which stood as the basis of his normative theory of political
morality. Still, at no stage did Dworkin establish a necessary
relationship between the analytical claims of his legal theory and
the principles which formed the constitutive political morality of
liberalism. Even less did he satisfactorily explain the precise
Legal Philosophy and the Liberal Theory of Justice 185

metaphysical status of the moral and political rights which he


associated with the liberal conception of justice.
In Law's Empire, Dworkin argued that the doctrine of law as
integrity directed the courts to adjudicate by reference to the
principles of political morality embodied in the practices of the
wider community. He then moved on to claim that law as integrity
represented the best theoretical interpretation of American legal
culture. At the same time, though, he denied that integrity
comprised 'an abstract and timeless political morality', or that the
particular claims of the theory - notably the foundation it provided
for the political ideals of community and fraternity - implied 'any
conclusive argument for integrity on first principles of political
morality'.48
In this respect, Dworkin diverged markedly from the great
classical and medieval traditions in natural law philosophy, in
which normative principles of political morality had been derived
from some determinate conception of human nature, and then
prescribed as universally valid moral truths. In contrast to the
pre-modem natural law jurists, of course, Dworkin viewed all
principles of political morality as grounded in the conventions
and practices constitutive of particular historical communities.
Yet, in adopting this historical view of political morality, he left it
unclear why the liberal theory of justice, and the specific set of
individual rights secured by it, should not be treated as merely an
abstract schematization of the practices and traditions of those
communities in which liberal standards of political morality had
come to be accepted and followed.
Dworkin did not defend a crudely relativistic theory of political
morality. In review articles published in 198349 and 1985,50 for
example, he explicitly rejected any conventionalist analysis of the
idea of justice which identified the requirements of justice exclu-
sively with the public mores of discrete historical societies, or which
assumed that morality itself consisted simply in abiding by 'the
traditions, practices, and codes that [defined] each moral commu-
nity'.51 The conventionalist analysis, he argued, obscured the crucial
respects in which deliberation about the nature of justice, and about
the requirements of justice in actual historical communities, pre-
supposed a structure of moral reasoning committed to a so-called
objective point of view. For Dworkin, it was only by virtue of this
regulative assumption of objectivity that justice survived as a fully
critical concept, which could be used to determine, challenge or
186 The Defence of Natural Law

otherwise evaluate the legitimacy of the established moral and


political conventions of a given community.
In other contexts, Dworkin assigned a clear non-conventionalist
status to the political morality of liberalism. In 'Liberalism', for
instance, he explicitly denied that this political morality was to be
identified in any exclusive sense with the social and economic
strategies pursued in the United States during the 1930s. On the
contrary, he emphasized that the core requirements of the liberal
theory of justice retained their normative authority even under
conditions which rendered the strategies integral to the New Deal
inappropriate or undesirable. Hence, he suggested that the collapse
of the New Deal consensus in America in the early 1970s was best
viewed as the result, not of any fundamental rejection of the
constitutive political morality of liberalism itself, but rather of
'changes in opinion and circumstance that made it doubtful
whether the old strategies for enforcing that morality were right' .52
Nevertheless, the fact remains that the schedule of individual
rights central to the liberal theory of justice presupposed a high
level of political and economic sophistication, attainable only at a
very advanced stage in the historical development of human
society. At the very least, these rights presupposed settled political
traditions of democratic participation and judicial independence,
together with complex market systems of economic production and
distribution - features of human society which, certainly until
recently, have been peculiar to the liberal democracies of the
West. It is difficult, therefore, to understand why the constitutive
political morality of liberalism should be ascribed any special
normative authority in societies whose political and economic
circumstances neither promote, nor allow for, the interlocking
structure of public policies and constitutional arrangements neces-
sary for the practical realization of the individual rights specified in
the liberal theory of justice.
Dworkin accepted that the 1980s had not provided objective
material conditions favourable to the egalitarian ethos of liberal-
ism. Indeed, he argued that the political constraints imposed by the
economic recession of the 1970s had obliged the progressive parties
in the Western democracies to revise many of their longstanding
assumptions about both the nature and the material preconditions
of social justice.
In 'Liberalism', Dworkin attributed the fragmentation of the old
Rooseveltian coalition in the early 1970s not only to the failure of
Legal Philosophy and the Liberal Theory of Justice 187

American will in Vietnam, but also to the emergence of issues like


consumer protection and environmental conservation - as well as to
the increasing opposition of liberals to existing 'strategies of central
economic and political organization' and of unionized labour to
'economic and social equality for racial minorities'.53 The changed
situation of the 1970s, as reflected in these new political configura-
tions, led Dworkin to the conclusion that the political morality of
liberalism should be reformulated on the understanding that the
pursuit of economic growth was a strategy for promoting, rather
than a constitutive part of, the liberal ends of justice and equality.
Writing in the aftermath of Margaret Thatcher's victory in 1979,54 for
example, he warned that, to recover its lost position, the British
Labour Party would have to reassess the implications of 'its
fundamental commitment to equality' in the light of the threat
posed to existing jobs by 'the new and strained circumstances of
world energy shortage and new technology'.55
In 1983, in 'Why Liberals Should Care about Equality', Dworkin
confronted directly the harsh reality that the Reagan Administration
had not inherited the advantageous conditions of economic growth
which had earlier helped promote the goals of Lyndon Johnson's
Great Society. It was not possible, he argued, for liberals to
reproduce in the 1980s the confidence of the 1960s that immediate
reductions in poverty would benefit the whole of American society.
For Dworkin, the overcoming of this crisis of liberalism required
nothing less than the formulation of a theory of economic rights
which acknowledged that prosperity might be threatened, rather
than advanced, by the kind of policies for the eradication of poverty
and inequality that had governed the pursuit of social justice in
America since the Roosevelt era. Specifically, he argued that it was
necessary to construct a theory of economic rights which estab-
lished morally compelling reasons for insisting that no citizen
should be deprived of 'the means to lead a life with choice and
value' merely in order to increase collective prosperity - in addition
to morally compelling reasons for abandoning public policies which
tended to 'reduce rather than enlarge the political participation and
social mobility of the class from which they [demanded] the
greatest sacrifice'.56
Dworkin did not explain why such a theory of economic rights
should have enjoyed any special normative authority in America
during the 1980s- a period distinguished, after all, by the notable
success of the New Right in generating a majoritarian consensus in
188 The Defence of Natural lAw
favour of its anti-welfare programmes. Of course, Dworkin believed
that his theory of law and adjudication made clear the important
senses in which the courts remained subject to no overriding
obligation to respect the will of the democratic majority. Indeed,
in 'Political Judges and the Rule of Law',57 a lecture delivered at the
British Academy in 1977, he argued that adjudication by funda-
mental principles of political morality would work to protect the
rights of poorer citizens against the decisions of legislative assem-
blies which represented the vested interests of rich and powerful
minorities. Nevertheless, there was no necessary reason why this
procedure of adjudication should have led the American courts to
ground their decisions in principles of political morality which
squared with an egalitarian theory of economic rights of the sort
that Dworkin commended as a response to the experience of the
early 1980s.
Dworkin associated the resurgence of free market economics in
the United States during the 1980s with the growing influence in
American jurisprudence of the so-called economic analysis of law.
Methodologically, the economic jurists sought to combine elements
of a descriptive sociology of judicial behaviour with elements of a fully
nontUJtive theory of the principles for the proper guidance of civil
adjudication. Thus in his Economic Analysis of lAw (1973),58 Richard
A. Posner of the Chicago Law School maintained, first, that the
common law had been developed by the courts in accordance with
a judicial policy aimed at the maximization of the total social welllth
of the community, as this was determined by purely economic
criteria of efficiency. Second, Posner argued that modern courts
should continue to adopt the policy of maximizing social wealth as
a controlling normative standard in civil adjudication.
The economic jurists tended to leave the normative elements of
their analysis of law substantially under-described. Indeed, the
economic jurists assumed a basically utilitarian justification of the
modern legal order, which was not, as such, brought within the
terms of any critically constructed moral philosophy. This was why
Dworkin opposed the whole thrust of the economic analysis of law,
particularly the normative claims contained in its theory of a~udi­
cation. Thus in 'Is Wealth a Value?'59 and 'Why Efficiency?', two
articles published in 1980, he emphatically denied that leading
economic jurists like Posner had succeeded in establishing a
morally defensible theory of individual rights.
Legal Philosophy and the Liberal Theory of Justice 189

In these articles, Dworkin explicitly rejected the maximization of


social wealth as a legitimate objective in adjudication. He also
stressed that the economic jurists had adduced no compelling
reasons of political morality to support the normative significance
which they attached to economic considerations among the differ-
ent standards of adjudication in hard cases. Dworkin's main
objection to the economic analysis of law, however, was that its
exponents had constructed an essentially pragmatist theory of law
and adjudication. Jurists like Posner had recommended that the
courts should adopt the principle of wealth maximization as a
governing standard of judicial decision. In doing so, Dworkin
argued, they had obscured the central role played in civil adjudica-
tion by irreducibly non-economic principles of political morality -
such as those which underwrote the normative status of the most
basic rights of the citizen, or those which specified criteria of
distributive justice for determining the fairest allocation of social
wealth among the individual members of a given community. For
Dworkin, in fact, it was not even clear whether a judicial pro-
gramme of wealth maximization could be reconciled with the
primary duty of the courts to give effect to whatever conventional
legal rights were ascribed to individuals under the provisions of the
positive law in force in their community.
Dworkin did not claim that the economic analysis of law was
inherently opposed to the idea of individual rights. He conceded
that many economic jurists, including Posner, had accepted that
societies committed to the maximization of social wealth would
always be required to define, and regularly enforce, such conven-
tional legal rights to labour, private property and freedom of
contract as enabled individuals to participate effectively in a free
market economy. Nonetheless, he submitted that the economic
jurists had been unable to recognize - consistently with the terms
of their own theory - that the judicial protection of even these
conventional legal rights frequently worked against the implement-
ation of public policies which stood to increase aggregate social
wealth. On the contrary, for Dworkin, the terms of the economic
analysis provided that the 'institution of rights, and partiCular
allocations of rights, [were] justified only insofar as they [promo-
ted] social wealth more effectively than other institutions or
allocations'.61 Accordingly, he insisted that the economic jurists
had assigned a purely instrumental, or strategic, value to individ-
190 The Defence of Natural Law
ual rights, which deprived these rights of any moral priority in
relation to the judicial policy of wealth maximization.
Dworkin concluded that the economic analysis of law was
fundamentally misconceived. Civil adjudication, he argued, was
to be understood not as an instrument for the realization of 'social
wealth, utility, or any other goal of policy', but as a judicial
procedure for reaching 'decisions of principle enforcing a plausible
conception of fairness' .62 With this conclusion, Dworkin made it
clear that the theory of law of integrity offered a powerful corrective
to the judicial pragmatism implicit in the economic analysis of law,
and, further, that integrity alone could vindicate the moral inviol-
ability of individual rights - including those rights at stake in the
actual production and distribution of wealth within a community.
Even so, the theory of law as integrity did not imply the necessity
of an abandonment of the organizational principles governing the
system of modem free market capitalism which the economic jurists
sought to defend in the idiom of legal pragmatism. Dworkin
maintained that the economic jurists had established no coherent
arguments of political morality for recognizing the legitimacy of the
institutions of the modem free market economy. The economic
jurists had tried to assign a value to social wealth by claiming that
societies committed to wealth maximization under free market
conditions would tend to establish more morally attractive systems
of individual rights, and to conform to more morally acceptable
principles of distributive justice. Against this, though, Dworkin
charged that the economic jurists had supplied no independent,
non-economic justification for attributing moral authority to the
particular schedules of individual rights, or to the particular
standards of distributive justice, adopted within such societies. In
the absence of some justification grounded in critically constructed
principles of political morality, he suggested, it was not possible to
regard social wealth as a value, still less to regard the pursuit of
wealth maximization as a reason for acknowledging the moral
authority of any given form of economic organization.
However, the latter part of Dworkin's case against the economic
jurists did not exclude the possibility that the policies of wealth
maximization advocated by free market economists might be
defensible in terms of critically established principles of political
morality. At any rate, the judicial procedures specified in the
theory of law as integrity did not formally prevent the courts from
elaborating a conception of fairness in which an intrinsic moral
Legal Philosophy and the Liberal Theory of Justice 191

value was assigned to the system of individual rights, and to the


standards of distributive justice, characteristic of an unregulated
free market economy. Indeed, the procedures of judicial integrity
were perfectly consistent with the principled enforcement by the
courts of a Nozickian system of individual rights to private proper-
ty or an Hayekian system of contractual rights - as well as with the
judicial enforcement of standards of distributive justice which
allowed for no rectification of the material inequalities brought
about through the unrestricted exercise of such rights under
market conditions.
These were implications of the idea of law as integrity which
Dworkin himself accepted. This was clear from his response to the
debate in America about the philosophy of constitutional adjudica-
tion provoked by the advent of the Reagan Administration. In Law's
Empire, Dworkin argued that law as integrity required the courts to
interpret the United States Constitution by reference to the princi-
ples of political morality disclosed throughout the entire history of
constitutional practice. At the same time, he emphasized that the
judicial procedures described in the theory of law as integrity were
compatible with conservative, as well as with liberal and progres-
sive, interpretations of the Constitution.
Of course, Dworkin was not uncritical of the judicial policies
prescribed by the American New Right. In the article 'Reagan's
Justice' (1984),63 for example, he openly deplored the tendency of
conservative Republicans to demand that President Reagan appoint
judges to the Supreme Court who would interpret the Constitution
as an instrument for enforcing the prejudices of the Moral Majority.
However, Dworkin's arguments about the Supreme Court were
addressed, first and foremost, to the particular theories of judicial
interpretation constructed by conservative jurists, rather than to
substantive ~uestions of judicial policy. Thus in 'The Bork Nomina-
tion' (1987), he criticized Reagan's nomination of Judge Robert
Bork for the Supreme Court, not because of Bork's conservative
record on such issues as abortion and capital punishment, but
because of the essentially historicist theory of adjudication with
which Bork had supported his judgments in matters of judicial
policy.
According to Dworkin, Bork had propounded a theory of judicial
interpretation which bound the Supreme Court to interpret the
Constitution on the basis of a judicial reconstruction of the original
intentions of its framers. Dworkin insisted that such judicial
192 The Defence of Natural Law

historicism involved a philosophical illusion, and, further, that a


jurisprudence of original intention, of the sort defended by legal
conservatives like the then Attorney General Edwin Meese, was
incapable of conferring strict constitutional legitimacy upon the
social and economic policies of the Reagan Administration. He
also maintained that historicist theories of constitutional adjudica-
tion involved a repudiation of the disciplined methods of legal
argument traditionally favoured by both conservative and liberal
judges. Under these methods, the courts were directed to decide
controversial issues of constitutional law, not by reference to the
actual purposes of its historical authors, but on the assumption that
the Constitution embodied 'an integrated structure of moral and
political principles'.65
Nonetheless, the principled attitude towards constitutional ad-
judication, which Dworkin upheld as a corrective to the jurispru-
dence of original intention, still permitted the courts to adopt a
conservative judicial policy in the decision of constitutional cases.
Indeed, Dworkin acknowledged that the constitutional philosophy
underlying the theory of law as integrity did not prevent the
Supreme Court from deciding basic questions of constitutional
law in terms of principles of political morality which supported
the anti-welfare programmes of the Reagan Administration - or
which imposed a structured coherence upon the populist prejudices
of the Moral Majority. For example, in the 1979 article 'How to Read
the Civil Rights Act'/116 he had implied that the provisions of the
existing civil rights legislation tolerated judicial interpretations of
their meaning based upon principles of political morality which
actually invalidated many programmes of reverse discrimination.
likewise, in 'From Bork to Kennedy' (1987),67 he commended Judge
Kennedy- Reagan's nominee for the Supreme Court following the
Senate veto of Bork - despite Kennedy's avowed conservative
preferences in matters of judicial policy. By rejecting judicial
historicism in favour of traditional methods of adjudication, he
suggested, Kennedy had demonstrated that fidelity to 'the ideal of
constitutional integrity' was compatible with judicial decisions
which yielded 'conservative results'. 68
Dworkin's opposition to the constitutional philosophy advocated
by conservative jurists of the New Right was motivated by an
underlying disagreement with the Reagan Administration on
ultimate questions of political morality. Dworkin argued that the
enforcing of free market economic policies would violate important
Legal Philosophy and the Liberal Theory of Justice 193

moral rights held by the individual citizen. He also warned that the
growing religious fundamentalism, which had prompted Repulr
licans to view the Supreme Court as 'the Moral Majority's clulr
house', would culminate in an abandonment of 'the traditional legal
methods' that protected 'individuals from majority will'.69 In both
respects, Dworkin implied that the public policies promoted by the
American New Right contravened the ruling principle of the liberal
theory of justice: namely, the obligation on governments to treat
their subjects with equal concern and respect by preserving a strict
official neutrality between competing forms of moral and political
commitment. This liberal interpretation of political equality, he
stressed in 'Liberalism', contrasted starkly with the constitutive
political morality of modern conservatism, which bound a govern-
ment to derive its guiding conception of equal treatment from 'some
theory about the good for man or the good of life'.70
However, the account of adjudication defended in Taking Rights
Seriously and Law's Empire did not limit the range of principles of
political morality available for the interpretation of law to those
enshrined in the liberal theory of justice. Indeed, in Dworkin's
account of adjudication, it remained unclear why the courts should
be required to adopt a theory of individual rights as a basis for
judicial decision, rather than some principle of political morality
which assigned priority to human goods and values conceived
independently of the idea of rights. Even more fundamentally, it
was left entirely open to question whether a theory of individual
rights could, in fact, provide a foundation for the reconstruction of
natural law principles in legal philosophy to which, in some
respects, Dworkin was committed.
In one sense, Dworkin plainly intended to establish an internal
relationship between the analysis of law and adjudication and a
normative theory of political morality. In challenging legal positi-
vism, he insisted that descriptive jurisprudence should be reinte-
grated with the evaluative concerns of the moral and political
sciences. This, then, was one respect in which he unambiguously
sought to revive natural law procedures in the context of modern
legal philosophy.
Nevertheless, the ethical presuppositions of the liberal theory of
justice diverged radically from those of the classical and medieval
traditions of natural law philosophy. The conception of equality,
essential to Dworkin's view of liberalism, was such as to exclude
any principle of political morality which could not be explained in
194 The Defence of Natural Law

terms of the idea of individual rights. The liberal theory of justice


thereby failed to honour its guarantee of equal treatment to any
citizen who, for instance, advocated a restrictive legal policy
towards abortion or homosexuality not by appeal to moral major-
itarianism, but by appeal to a naturalistically conceived system of
ethics, or to a theistic or law conception of morality. Indeed, the
contrast that Dworkin drew between the conservative and liberal
theories of equality reflected nothing less than the fundamental
distinction between the ruling assumptions in moral and political
philosophy common to Plato, Aristotle and Aquinas and those
subsequently adhered to by theorists in the modern tradition in
moral and political philosophy like Hobbes, Kant and Mill. How-
ever, the implications of the immense conceptual gulf dividing
these two philosophical traditions bore directly upon questions
central to the task of constructing a legal method appropriate to the
vindication of the natural law standpoint in contemporary jurispru-
dence.
In developing his legal theory, Dworkin repudiated the scientific
procedures of modern legal positivism and modern legal sociology.
In doing so, he constructed a purposive analysis of legal reality,
which served both to realign the description of law with its
evaluation, and to exclude any ultimate distinction between the
morality of a society and its legal order. Yet in Dworkin's case, this
purposive method of legal analysis tended to involve a form of
historical relativism which stood opposed to the universalist
orientation of the great pre-modern natural law tradition in moral
and political philosophy. Hence in Law's Empire, Dworkin insisted
that all normative standards of justice and legitimacy were groun-
ded not upon universally valid principles of political morality, but
upon the principles of political morality accepted within different
historical communities as justifications for their formal legal ar-
rangements.
On occasion, Dworkin did claim that all deliberation about law
and morality was governed by the regulative assumption of an
objective point of view - that is, a notional perspective from which
abstract, timeless principles of political morality could be adopted
as criteria for assessing the justice of the social and legal conven-
tions of particular communities. However, he did not specify this
point of view in terms of a critically constructed theory of ethics.
Indeed, in defending the liberal theory of justice, he dissociated
himself from precisely that tradition in ethics in which principles of
Legal Philosophy and the Liberal Theory of Justice 195

political morality were derived from a universally applicable


conception of human nature and its integral goods and values. To
this extent, Dworkin established no foundation, from within ethical
philosophy, either for justifying the primacy which he assigned to
individual rights within his normative theory of political morality,
or for evaluating the merits of the rival principles of political
morality actually embodied in different historical societies. Never-
theless, it remained doubtful whether the legitimacy of the modern
rule of law was to be vindicated, or the procedures integral to the
natural law tradition to be successfully recovered for contemporary
jurisprudence, in the absence of some method in legal theory which
could adequately incorporate the critical viewpoints afforded by
moral philosophy. This was the conclusion of John Finnis, the jurist
considered in the next chapter.
5
John Finnis: Thomism
and the Philosophy of
Natural Law
In common with Fuller, Oakeshott, Hayek and Dworkin, Finnis
argued for an internally sanctioned connection between law and
morality, while also firmly rejecting the utilitarian justification of
the modern legal order assumed by jurists belonging to the
tradition of legal positivism. In contrast to these other theorists,
however, Finnis did not examine the idea of natural law exclusively
in terms of formal or procedural principles of legal justice. Instead,
he insisted that the justification of the modem rule of law required
the exposition of a substantive theory of human nature and the
moral goods and values necessary to its perfection. Thus in Natural
lAw and Natural Rights (1980), the Carroll Lectures of 1982 published
subsequently as Fundamentals of Ethics (1983),1 and Nuclear Deter-
rence, Morality and Realism (1987),2 Finnis formulated a fully natur-
alistic theory of human morality and moral reasoning - a theory in
which he set aside the methodological procedures that structured
the I<antian and utilitarian traditions in ethics in favour of the
procedures central to the classical Thomist philosophy of natural
law. In formulating his ethical theory, Finnis was led to ground the
moral authority of the rule of law in certain fundamental require-
ments of practical reason, which he believed to be essential to the
realization of all human goods and values within organized
political society.
Finnis considered that the principles of natural law embodied
universally valid criteria of evaluation, which provided a concept-
ual framework for determining the moral legitimacy of any given
historical form of legal order. In this sense, he implied that a theory
of ethics adequate to the defence of the natural law standpoint in
legal philosophy would have to transcend the sort of historical
relativism which ran through the work of Fuller, Oakeshott, Hayek
and Dworkin. Accordingly, he did not seek to draw the basic
196
Thomism and the Philosophy of Natural Law 197

principles of natural law from an analysis of the procedures of


civil adjudication which had governed the practice of the courts in
the common law tradition. Indeed, he indicated that the defence of
natural law philosophy demanded an abandonment of the jurispru-
dential tradition of Blackstone, as well as that of Bentham and
Austin.
For example, in the early article 'Blackstone's Theoretical Inten-
tions' (1967),3 Finnis emphasized that Blackstone had actually
broken with the great natural law tradition of Aquinas and
Hooker. This was so, he argued, because Blackstone had sought
to derive normative principles of natural law from a theory of the
state of nature, in which the individual person was considered in
abstraction from any complex form of legal and political relation-
ship. In fact, by treating the concept of good presupposed by the
principles of natural law as 'individual and presocial', Blackstone
had adopted a view of law according to which 'the great ends of the
law' consisted in nothing more substantial than 'the protection of
pre-existing individual rights'." In doing so, however, Blackstone
had dissociated the exposition of the principles of natural law from
the attempt to formulate a concept of the common good whose
component values might have served as a ground of justification
for the various systems of positive law adopted in different
societies. As a result, Finnis concluded, Blackstone had failed to
establish any significant relationship of derivation between natural
law and positive law. Indeed, for Finnis, Blackstone had been led to
explain the basis of legal obligation in terms of the idea of superior
will, rather than in terms of the idea of a reasonable connection
between the law as means and the end to be fulfilled by law.
Finnis believed that attention to the pre-modem tradition of
natural law would counter the voluntarist interpretation of moral-
ity and political society that underlay both the general philosophical
idea of an original social contract and, more specifically, the
philosophical tradition of natural right initiated by Hobbes. In
another early article, 'Reason, Authority and Friendship in Law
and Morals' (1970),5 Finnis argued that Plato, Aristotle and Aquinas
had brought out the priority of the ethiClll standpoint within legal
and political theory, chiefly through their insistence that the central
criterion of relevance in political philosophy should always be
sought among the morally good man's concerns. In a later article,
'Scepticism, Self-Refutation, and the Good of Truth' (1977),6 Finnis
went on to underscore the fundamental distinction between classi-
198 The Defence of Natural lAw
cal and medieval philosophy, which had presupposed the possibi-
lity of objective knowledge in law and morals, and the tradition of
modem philosophy in which this possibility had come to be
excluded. Finnis attributed the moral and metaphysical scepticism
that he saw informing the work of theorists like Fuller, Hart, Rawls
and Nozick to the progressive abandonment by modem legal and
political philosophers of a ruling ethical conception of the summum
bonum - a process which, he maintained, had begun with the
philosophy of Hobbes. He emphasized that, in contrast to philoso-
phers in the modem tradition, Plato, Aristotle and Aquinas had
recognized that certain basic values, such as truth and knowledge,
were self-evident and intrinsic goods by reason of the very
constitution of human nature. As a consequence of this recogni-
tion, he argued, these theorists had been able to develop procedures
for the objective determination of the moral goods and values
essential to the organization of a legitimate political order. It was
through the application of these procedures that Finnis himself
attempted to establish the universal principles of natural law in
Natural Law and Natural Rights.

i. NATURAL LAW AND NATURAL RIGHTS

In Natural lAw and Natural Rights, Finnis explicitly repudiated the


ideal of value-neutrality in legal method upheld within the Austin-
ian tradition of jurisprudence. The adequate explanation of legal
reality, he insisted, necessitated a specification of the human goods
secured by law and, also, of certain so-called requirements of practical
reasonableness which a morally legitimate legal order would tend to
satisfy.
Finnis considered the specification of these basic human goods
and requirements of practical reason to be both an objective of
ethical theory and the precondition of methodological coherence in
legal analysis. Accordingly, he rejected the possibility of any
absolute distinction between the description of law and the evalua-
tion of its ends and purposes. As much as Fuller and Dworkin, then,
Fmnis adhered to an essentially purposive method of legal analysis.
Jurisprudence and legal philosophy, he argued, were required to
relate the description and explanation of law to the practical value
and significance attributed to it by the actual subjects of legal order.
Thomism and the Philosophy of Natural Law 199

To this extent, jurists and legal philosophers had an inescapable


responsibility to construct a ruling viewpoint of practical reason-
ableness so as to provide a foundation, from within ethical theory,
for the critical evaluation of existing legal phenomena. Only in this
way, Finnis claimed, would jurisprudence and legal philosophy
unite their descriptive and normative concerns in conformity with
the analytical procedures followed by the classical and medieval
theorists of natural law.
Finnis allowed that, in contrast to Bentham and Austin, most
twentieth-century jurists had characteristically laboured to justify
their descriptive analyses of law in terms of some practical viewpoint
ascribed to the legal subject. For example, he suggested that Hart, in
distinguishing between primary and secondary legal rules, and
Fuller, in distinguishing between the rule of law and institutional
processes of managerial direction, had appealed to a theoretical
perspective from which the description of legal phenomena was
recognized to be directly related to considerations of practical
relevance. Nonetheless, Finnis insisted that the practical viewpoints
of the legal subject presupposed by Hart and Fuller remained
inexplicit and inadequately justified. Neither Hart nor Fuller, he
submitted, had succeeded in specifying his assumed practical view-
point with sufficient clarity to transform it into a critical criterion
capable of resolving the major points of disagreement between rival
theoretical analyses of law. On the contrary, both jurists had tended
to isolate the practical attitude towards law from the wider moral
concerns of practical reasonableness, and, as a result, had failed to
confer any genuine ethical significance upon the practical viewpoints
which they assumed in constructing their competing descriptions of
legal reality.
For his part, Finnis acknowledged no real discontinuity between
the legal and ethical dimensions of practical reasonableness. The
ruling viewpoint of practical reasonableness in jurisprudence, he
argued, represented a viewpoint in which legal obligation could be
understood as 'a moral obligation', and 'the establishment and
maintenance of legal as distinct from discretionary or statically
customary order' could be re~arded as 'a moral ideal if not a
compelling demand of justice'. This governing viewpoint served
both to realign jurisprudence with ethics, and to preserve legal
philosophy from the arbitrariness of historical relativism by fulfill-
ing the universalist aspirations of the natural law tradition. Hence,
in identifying the 'conditions and principles of practical right-
200 The Defence of Natural Law
mindedness, [and] of good and proper order among men and in
individual conduct', Finnis concluded, the natural law tradition had
been able to develop general, critically justified concepts of law and
morality - where these concepts were not to be explained as merely
the 'manifestations of the various concepts peculiar to particular
peoples and/ or to the particular theorists who concern themselves
with those people'.8
Finnis himself tried to formulate such general concepts as part of
a complex theory of natural law. This theory grounded the
principles of natural law upon a set of fundamental values, or
practical principles, which disclosed the basic forms of human
flourishing that were to be grasped and pursued as intrinsic goods.
According to Finnis, these basic values were life, particularly bodily
health, freedom from pain and injury, and the reproductive process;
knowledge, or the pursuit of truth for its own sake; pllly, that is, the
participation in activities without external point; aesthetic experience,
especially the enjoyment of the beautiful; sociability, ranging from
the minimum standards of political association to the condition of
full friendship; practical rellSOnableness, that is, the capacity to impose
an intelligent and reasonable order upon deliberation about the
pursuit of basic goods; and, lastly, religion, which comprehended all
metaphysical reflection concerning the relationship between human
values and the 'transcendent origin of the universal order-of-things
and of human freedom and reason' .9
These seven basic values were self-evident and indemonstrable
human goods. In being so, the seven basic values informed the
permanent principles of practical reason which organized the
pursuit of anythin~ human agents might 'reasonably want to do,
to have, and to be'. 0 In combination, the basic values and practical
principles described the universal forms of human interest and
commitment which underlay the ethical codes and institutional
arrangements of different human societies at any given stage in
their historical development.
The basic goods and values that Finnis considered to be integral
to human flourishing did not, as such, constitute the sphere of
ethics or morality. For Finnis, the practical principles which guided
the pursuit of the basic goods made up the essentially pre-moral
standards of natural law. However, he characterized the basic good
of practical reasonableness as a form of human flourishing which
directly involved the traditional moral concepts of freedom, authen-
ticity and self-determination. Moreover, he claimed that this basic
Thomism and the Philosophy of Natural Law 201

good yielded certain core methodological requirements, which


represented fully normative principles of practical deliberation.
According to Finnis, there were nine such principles of practical
reason, which specified the normative constraints upon rational
deliberation that facilitated the effective participation by the human
agent in all the basic forms of human flourishing. These principles
stated, first, that the methodological requirements of practical
reasonableness should themselves guide and structure the pursuit
of goods, and, second, that the pursuit of the basic goods and values
should be structured around some coherent plan of life. The require-
ment of structured coherence in practical deliberation, Finnis
argued, was essential to the exercise by the human agent of the
virtue of personal integrity. Hence, the requirement provided an
underlying moral justification for the third, fourth and fifth
requirements of practical reasonableness, which, respectively, pro-
hibited arbitrary preferences amongst values, excluded arbitrary prefer-
ences amongst persons, and demanded the maintenance of a proper
equilibrium between detachment and commitment in human delibera-
tion concerning the basic goods.
The sixth, seventh and eighth requirements, by contrast, bore
directly upon the public dimension of practical deliberation. These
requirements bound the individual agent to recognize the (limited)
relevance of consequences in practical deliberation, to maintain respect
for every basic value in every act, and to conform to the demands of the
common good as these were articulated in the concrete moral and
legal duties enforced by the political community. All these proce-
dural constraints upon deliberation were qualified by the ninth
requirement of practical reasonableness, which provided that a
human agent should never be obliged to act contrary to the dictates
of his own conscience. This requirement was overriding, Finnis
insisted, because practical reasonableness was itself 'an aspect of
personal full-being, to be respected ... in every act as well as "over-
all"- whatever the consequences'.11
For Finnis, the nine methodological requirements of practical
reasonableness stood as objective criteria both for distinguishing
between reasonable and unreasonable procedures of prudential
deliberation, and for distinguishing between ways of acting which
were morally right and wrong. The requirements thus constituted
authentic moral principles of natural law, and, in doing so, com-
plemented the first, pre-moral principles of natural law which
described the basic human goods and values.
202 The Defence of Natural Law

The principles of natural law were intended by Finnis to demon-


strate the possibility of objective knowledge in law and morality. In
this way, Fmnis challenged the assumption by moral and political
philosophers in the tradition of Hume and Kant of an absolute
distinction between the logical status of descriptive propositions
and that of evaluative judgments. Of course, he acknowledged the
pivotal historical importance of Hume's arguments that statements
of moral obligation could never be legitimately derived or inferred
from propositions which contained mere statements of fact. How-
ever, Finnis emphatically denied that Hume's arguments had
application to the procedures in ethics actually followed by
Aquinas. Aquinas, he insisted, had not sought to derive normative
precepts of natural law from factual premises about human nature-
or, for that matter, from metaphysical premises about the will of
God. On the contrary, Aquinas had grounded these precepts upon
underived principles of practical reason, which made 'no reference at
all to human nature, but only to human good'. 12
Finnis maintained that his own determination of the principles of
natural law was modelled upon the classic Thomist procedures in
ethics. Thus, while Finnis certainly set out to derive moral
standards of natural law, as embodied in the requirements of
practical reasonableness, from supposedly pre-moral principles of
natural law, he also argued that the basic human goods and values,
which constituted these first principles of natural law, were
themselves self-evident and underived principles of practical
reason. It was in this sense that Finnis insisted that his defence of
natural law involved no illicit derivation or inference of moral and
legal norms from factual or metaphysical premises.
Finnis claimed that his reformulation of the Thomist theory of
natural law provided a philosophical foundation for the traditional
precepts of common morality which avoided the defects of the
particular methods of moral reasoning associated with the rival
Kantian and utilitarian traditions in ethics. Finnis accepted that
Kant had correctly grounded morality in the rational nature of the
human agent. For example, in Natural Law and Natural Rights, he
was explicit that Kant's formulation of the categorical imperative
had given recognition to the requirement of practical reasonable-
ness which demanded respect for all the basic values in every act.
At the same time, though, he rejected the deontological structure of
Kantian ethics. With the categorical imperative, Kant had sought to
Thomism and the Philosophy of Natural Law 203

derive the substantive duties imposed by the moral law from a


purely formal principle of practical reason, which was determined
independently of any prior specification of the goods constitutive of
human nature. However, in Nuclear Deterrence, Morality and Realism,
Finnis denied that the formal requirement of universalizability - the
procedural principle of practical deliberation which Kant had
regarded as the basis of the moral law - guaranteed the substantive
content of common morality as reliably as did the sort of principles
of practical reason that he had earlier set out in Natural Law and
Natural Rights. Indeed, he implied that the requirement of universal-
izability remained consistent with the choice of actions which
actually contravened the traditional precepts of common morality,
or which violated basic values enshrined in the first principles of
natural law.
The natural law method in ethics was to be distinguished from
the procedures of Kantian ethics, Finnis contended, because it
examined morality in its purposive relation to the ends of human
flourishing and well-being. Nonetheless, Finnis did not defend the
natural law position in terms of the sort of teleological structure
which he ascribed to the classic formulations of utilitarianism. On
the contrary, he claimed that the basic principles of natural law
established a method of moral reasoning which diverged funda-
mentally from the consequentialist procedures of practical delibera-
tion underlying orthodox theories of act-utilitarianism and rule-
utilitarianism.
It was the central defect of utilitarianism, Finnis argued, that its
defenders characteristically postulated a unitary criterion of value, in
the sense that they assumed that different human goods were
always to be justified in terms of their instrumental contribution
to some single external goal or end, such as pleasure or happiness.
Finnis, by contrast, maintained that the basic goods and values
comprising the first principles of natural law were to be viewed as
non-instrumental goods and values, in the sense that their status as
human goods and values did not derive from their relationship to
any extrinsic goal or end. Moreover, for Finnis, the first principles
of natural law were essentially pluralistic principles of practical
reason. This was so in the respects that each basic value remained
equally and irreducibly a form of human good, and that no one of
the basic values could be viewed as merely an aspect or instrument
of any of the other basic values. As a result, the various goods and
204 The Defence of Natural lAw

values described by the principles of natural law were objectively


incommensurable in terms of any presiding criterion of utility.
Finnis charged that the pluralistic character of the first principles
of natural law was such as to invalidate the methods of practical
reason commended in the standard theories of utilitarianism.
According to these theories, all human deliberation was, ideally,
to be guided by the methodological injunction to maximize the
beneficial consequences of actions, or to minimize their harmful
consequences. However, Finnis stressed that utilitarian methods of
practical deliberation yielded no consistently consequentialist rea-
sons for preferring any particular principle governing the proper
distribution of goods among different individuals within society, or
for regarding the egoistic pursuit of personal advantage as immoral
or unreasonable and the altruistic pursuit of the public welfare as
moral or reasonable. Above all, Finnis argued that the consequenti-
alist procedures of practical deliberation constructed in classical
utilitarianism permitted actions which directly damaged basic
goods and values, or which flagrantly violated the traditional
precepts of common morality, whenever such actions promised to
maximize beneficial outcomes.
Of course, Finnis believed that it was itself a requirement of
practical reasonableness that moral deliberation should be guided,
to a limited degree, by consideration of the immediate conse-
quences or general utility of human actions. By the same token,
though, he insisted that other requirements of practical reason-
ableness - like the restrictions upon arbitrary preferences amongst
persons and values, and the duty of respect for every basic value in
every act - placed any consequentialist assessment of prospective
actions within a containing framework of moral norms and con-
straints, which unconditionally excluded certain actions irrespective
of their beneficial consequences. These requirements sufficed to
prohibit the deliberate choice of any action which damaged a basic
good or value in order to promote some extrinsic goal or end. In
marked contrast to utilitarianism, then, the natural law method in
ethics absolutely excluded acts, such as the deliberate judicial
condemnation or the intentional killing of the innocent, which
violated the basic value of life itself. To this extent, the require-
ments of practical reasonableness provided that all deliberation
should be subject to the unconditional normative prohibitions
embodied in the precepts of common morality, and that it should
Thomism and the Philosophy of Natural Law 205

always be conducted in accordance with the strict inviolability of


the basic human rights secured under the rule of law.
In the latter respect, the natural law method in ethics bore directly
upon Finnis's concerns in jurisprudence and political philosophy.
Finnis considered that the principles of natural law described the
permanent components of the common good which grounded both
the authority of the rule of law and the justice of the general duty of
compliance with its explicit provisions. These principles also under-
wrote all the constraints upon the exercise of lawful authority
within a political community as imposed by the specifically
procedural morality of law, and by the background moral obliga-
tion falling on a government to respect basic human rights.
Finnis differed from the mainstream theorists of legal positivism
in acknowledging no final distinction between state and society.
Indeed, Finnis followed Aristotle and Hegel in identifying the
political state as a complete or self-sufficient community, which
comprehended the domestic economy of the family, the institution
of private property, the division of labour between families,
together with the complex modes of economic specialization and
collaborative enterprise essential to the production and exchange of
goods and services in an advanced market economy. Hence, he
argued that the state understood as a community necessarily
presupposed some shared conception of the common good ground-
ing the authority of its legal and constitutional order.
This did not mean that Finnis questioned the self-sufficiency of
the modem rule of law as a form of political regulation, despite the
fact that it was made up predominantly of positive legal norms. It
was a particular virtue of the modem legal system, he claimed, that
it contained normatively compelling rules which formally consti-
tuted and empowered the offices that created and administered the
law, in addition to power-conferring rules by which private
individuals were enabled to regularize their circumstances through
the performance of juridicial acts like deeds and contracts. In these
respects, the formal structure of the rule of law fulfilled the
procedural requirements of practical reasonableness by bringing
'definition, srecificity, clarity, and thus predictability into human
interactions'. 3 Even less did Finnis dispute the authenticity of
positive law as a source of binding legal obligations. Like Aqui-
nas, Finnis accepted that an authentic rule of law had to include
certain rules prohibiting arbitrary violence and theft, and others
206 The Defence of Natural Lllw

upholding the institutions of marriage and private property. Yet he


also followed Aquinas in asserting that the relationship between
these universal principles of natural law and the positive law of any
given human society was a relationship of determination, which
always necessitated the exercise of a free and authoritative choice
on the part of the legislative or judicial institutions of that society.
Accordingly, for Fmnis, the promulgation of a positive law prohi-
biting murder or theft created a distinct legal motive for compliance
with what would otherwise be merely a general requirement of
practical reasonableness to promote the common good.
Nevertheless, Finnis insisted that the authority of the rule of law
could not be self-lluthentiCilting. The fundamental consideration in
attributing authority to a system of positive law, he argued,
consisted in its effectiveness in maintaining the minimum conditions
of political association necessary to secure the common good. In
proposing this essentially purposive justification for the rule of law,
Finnis diverged markedly from the voluntarist analysis of legal
obligation constructed by Hobbes, Locke and the other social
contract theorists. Of course, the social contract theorists had
attempted to ground the moral authority of the state upon the
antecedent promissory agreement of its subjects. Finnis recognized
that there existed a certain analogy between the general obligation
imposed by the rule of law and the obligations created in promis-
sory agreements. This analogy held, he suggested, in the respect
that the moral rationale for the convention of promising, like that
informing the rule of law, lay in its purposive contribution to the
realization of the common good within political society. Indeed, the
institution of the promissory agreement contributed to the realiza-
tion of the common good precisely because of its special status as a
social institution designed 'to enable individuals to exercise a
control over their own relationships in community' .14
However, Finnis emphasized that the general obligation of
fidelity to law differed from promissory obligations in possessing
an invariant quality or force. A promissory obligation, he argued,
could bind the parties to the agreement or undertaking which
created it only by virtue of their own voluntary and intentional
acts. Legal obligations proper, on the other hand, remained morally
binding independently of any explicit voluntary act on the part of
their subjects. Even so, Finnis maintained that the invariant force
attaching to legal obligation was best understood in terms of the
same basic purposive justification which he ascribed to the institu-
Thomism tlnd the Philosophy of Nllturfll Lflw 207

tion of promising. The ultimate moral basis for all legal obligation,
he claimed, lay in the perception by the legal subject of the rational
necessity of discharging particular legal duties because of the
underlying requirement of practical reasonableness to promote
the common good through compliance with the rule of law. In
this sense, the invariant force of legal obligation arose directly from
the natural tendency of the legal subject to regard the duties
imposed by specific rules of law as morally overriding constraints
upon practical reasoning, in isolation from his more unmediated
deliberation about the implications of the general requirements of
the common good which grounded the legitimacy of the legal
system as a whole.
Finnis did not address directly the command theory of law as
formulated by Hobbes, Bentham and Austin. However, he did
expressly deny that the invariant force of legal obligation de-
pended upon the threat of punitive sanctions for non-compliance,
or that the morally binding force of legal rules was created through
a voluntary act on the part of the sovereign law-making authority
responsible for their formal stipulation. In doing so, Finnis en-
dorsed the analysis of legal obligation which he attributed to
Aquinas. In this analysis, the generation of a valid legal obligation
was indeed understood to presuppose some authoritative com-
mand, or a so-called imperium, on the part of an authorized
lawgiver, which involved an explicit choice or act of decision by
the lawgiver to stipulate the rule or norm that imposed the
obligation. Nonetheless, according to Aquinas, this imperium could
be considered to create a normatively compelling obligation for the
legal subject only by virtue of an autonomous recognition by that
subject of a rationally transparent connection between the imperium
and the permanent requirements of the common good. To this
extent, the moral significance for the legal subject of the explicit
acts of legislative decision by an authorized lawgiver hinged upon
their relation to a containing normative framework of practical
reasonableness which was not of the lawgiver's own creation, and
which remained entirely independent of the lawgiver's choice or
will.
On Finnis's reading of it, Aquinas's analysis of the logic of legal
obligation made clear the crucial respects in which attention to the
structure of human practical reason worked to counter, not only the
authoritarian presuppositions of the command theory of law in
general, but also the assumption of the mainstream positivist jurists
208 The Defence of Natural Law

that there existed an absolute distinction between the strict legal


validity of law and its rationality or justice.
Finnis did not restrict himself to the provision of a purely
conventionalist or formalistic definition of the concept of justice.
He did not limit the requirements of justice to the duties and
obligations laid down in the rules and conventions of positive
law, or seek to describe the idea of justice exclusively in terms of
the procedural morality governing the administration of a legal
system. Finnis also considered the concept of justice to include a
theory of reasonable compliance with the law, which drew out the
implications of the classic Thomist maxim lex injustll non est lex. As
defended by natural law theorists in the Thomist tradition, he
argued, this principle implied neither that iniquitous laws lacked
strict legal validity because of their injustice, nor that unjust laws
failed to impose an authoritative legal obligation. However, he did
insist that the principle provided that manifestly unjust laws always
lacked the sort of moral authority which belonged uncontroversially
to most laws simply by virtue of their positive legal authenticity. To
this extent, the principle permitted the critical evaluation of the
legal obligation imposed by an unjust law in terms of moral
considerations which, under certain circumstances, justified a right
to disobey its provisions. In this sense, Finnis understood the
principle lex injusta non est lex to presuppose the existence of
standards of justice which were independent of the explicitly
stipulated rules and norms that made up the actual systems of
positive law adopted in different human communities.
In contrast to Rawls and Dworkin, Finnis was not concerned
primarily with the concept of justice in its application to the
background institutional and economic structure of political so-
ciety. In fact, he assumed justice to be a specific attribute or quality
of personal character, which was expressed in the practical disposi-
tion of the virtuous citizen. Accordingly, he tried to derive the
principles of justice from the underlying requirement of practical
reasonableness to promote the public goods instantiated in the
political community. In this way, he was able to develop a complex
theory of justice, based largely in the thought of Aquinas, which
comprehended the concept of justice in its three distinct distributive,
commutative and legal forms.
Finnis supported his theory of justice with an important historical
thesis. The analysis of justice which Aquinas had originally
Thomism and the Philosophy of Natural Law 209

constructed, he contended, came to be significantly transformed in


the early sixteenth century - largely as a result of the influential
Commentary on the Summa Theologiae written by the Dominican
theologian Tommaso de Vio, better known as Cardinal Cajetan
(1468--1534). First, whereas Aquinas had held that private citizens
were subject to duties of distributive justice, theorists after Cajetan
generally identified the obligations of distributive justice exclu-
sively with the publicly defined responsibilities of the state to the
political community as a whole. Second, while Aquinas had
regarded the principles of commutative justice as applying to the
publicly defined duties owed by the state and its officials to the
individual citizen, theorists in the tradition of Cajetan tended to
restrict the application of these principles to the sphere of transac-
tions between private citizens. Finally, whereas Aquinas had under-
stood legal justice as 'the fundamental form of all justice', which
defined the substantive duties imposed by the principles of
distributive and commutative justice, the successors to Cajetan
tended to conceive the idea of legal justice in purely formal
terms, as describin& merely 'the citizen's duty of allegiance to the
State and its laws'.
Finnis claimed that the revision of Aquinas's analysis of justice
had carried momentous consequences for the subsequent history of
political philosophy. The revision of the Thomist analysis was
crucially important, he maintained, in understanding the tendency
of modem political theorists, like Rawls and Nozick, to identify the
state as the sole and exclusive subject of distributive justice. This
tendency was most evident with Nozick, who had concluded that
policies of redistributive taxation were unjust because they required
the state to exercise coercive force in violation of the moral and
political rights of the individual citizen. Finnis rejected this conclu-
sion, and argued that it followed from Nozick's highly contestable
assumption that publicly conceived principles of distributive justice
had no morally permissible role to play in defining the duties and
responsibilities which organized the private relationships of indivi-
duals within a political community. From the standpoint of the
original Thomist analysis, he argued, it was entirely appropriate to
construe the element of coercion in public policies of economic
redistribution as involving, not a violation of the moral rights held
by individuals, but, rather, the enforcement by the state of duties
which private citizens already owed as subjects of distributive justice.
210 The Defence of Natural Law
Whereas Oakeshott and Hayek regarded the pursuit by the state
of greater distributive justice within political society as being
inherently subversive of the principles of legal morality, Finnis
acknowledged no essential antagonism between the morality of
the rule of law and the concept of distributive justice. Indeed, he
affirmed that the government of a modern state had a clear moral
obligation to maintain a fair distribution of 'resources, opportu-
nities, profits and advantages, roles and offices, responsibilities,
taxes and burdens'.16 Accordingly, he recognized the existence of
certain criteria of distributive justice, such as need, function, desert
and contribution, which were themselves implied by the basic idea
of practical reasonableness.
For Finnis, the criteria of distributive justice did not serve to
identify states of affairs inherent in the structure of society. Instead,
these criteria determined what justice required of the individual
citizen, given the complex network of responsibilities, commitments
and obligations which governed his relationship to the political
community as a whole. Finnis's criteria of distributive justice, then,
did not function as universally valid standards of justice for
determining the fairest allocation of resources and opportunities
within particular communities. In consequence, Finnis denied that
these criteria were reducible to the sort of egalitarian principles of
distributive justice formulated by Rawls in A Theory of Justice. On
the contrary, he argued that the central concern of justice in a
modem state lay not with the maximization of social and economic
equality, but, rather, with the promotion of the common good, in
relation to which equality ranked as merely a residual principle of
distributive justice.
Despite his criticisms of Nozick's theory of distributive justice,
Finnis still followed Nozick in defending the private ownership of
property and the means of production. Indeed, he allowed that the
legitimate requirements of distributive justice could not be fulfilled
satisfactorily in societies organized in accordance with principles of
communal ownership or full-scale economic collectivism. Unlike
Nozick, though, Finnis did not seek to justify the institution of
private property in terms of the idea of individual rights. Private
property was justifiable, he claimed, both because it secured the
good of individual autonomy within a community, and because it
provided the most effective productive management of land and
economic resources. Yet, for Finnis, the primll facie legitimacy of the
institution of private property did not alter the fact that all natural
Thomism and the Philosophy of Natural Law 211

resources and capital assets comprised a common stock, which


existed for the benefit of the community as a whole. Although this
common stock was usually best administered through a system of
private ownership, this remained so, he argued, only because the
institution of private property had in general proved to be more
efficient than forms of public ownership in realizing the common
good within organized political society.
It was from this purposive justification of private property, rather
than from any Nozickian theory of inviolable individual rights, that
Finnis derived the specific rights of exclusion, transference and
immunity from arbitrary divestment which structured an economic
system based on the private ownership of land and resources. In
consequence, Finnis did not assume that the institution of private
property was unconditionally just in any sense which automatically
excluded the public provision of welfare services, policies of
redistributive taxation, or even the expropriation of private proper-
ty in certain extreme circumstances. On the contrary, he empha-
sized that the exercise of the rights constitutive of the institution of
private property sometimes violated obligations imposed upon
private citizens by containing principles of distributive justice. This
was so particularly with the 'speculative acquisition and disposition
of property, for the purposes of merely financial gain uncorrelated
with any economically productive development or use', 'the with-
holding of liquid assets from capital markets', 'dilapidations and
failures of reasonable conservation of consumer durables, such as
houses', and with private monopolies which restricted 'the avail-
ability of property to other individuals' or which thwarted 'the
working of a competitive market system' _17 In such cases, where the
rights of private ownership obviously worked to the detriment of
the common good, then, Finnis insisted, the public authority was
fully entitled to implement measures of redistribution and official
regulation, in order to rectify the failure of private owners to
discharge the duties to which they were subject under morally
binding principles of distributive justice.
The analysis of property rights in Natural Law and Natural Rights
was evidence of Finnis's more general determination to dissociate
the principles of natural law from the liberal ideology of individual
rights. Finnis affirmed the reality of certain basic moral and political
rights of the individual person. These included 'the right not to
have one's life taken directly as a means to any further end', 'the
right not to be positively lied to in any situation ... in which factual
212 The Defence of Natural Law

communication ... is reasonably expected', 'the related right not to


be condemned on knowingly false charges', 'the right not to be
deprived, or required to deprive oneself, of one's procreative
capacity', and 'the right to be taken into respectful consideration
in any assessment of what the common good requires'. 18 Finnis
claimed that these rights were absolute and exceptionless principles
of justice, which could never be legitimately overridden in order to
promote the public policies of a political community, or to secure its
collective welfare. Hence, the basic moral rights of the individual
possessed an integrity, or a so-called conclusory status, which
Finnis considered to derive from the requirement of practical
reasonableness forbidding the violation of the basic values consti-
tutive of the common good. For Finnis, this requirement provided
the ultimate ground of justification for the type of absolute
prohibitions - like those excluding torture or condemnation with-
out trial- which were to be found contained in modem declarations
of universal human rights.
Finnis shared the view of Oakeshott, Nozick and Dworkin that
the inviolability of individual rights could not be guaranteed by a
purely utilitarian justification of political society. Nevertheless,
Finnis also indicated that modem theories of human rights be-
trayed a deep-rooted metaphysical incoherence, and that the
character of those individual rights which were genuine require-
ments of the common good had come to be misconceived owing to
their confusion with the type of allegedly unconditional rights, like
those to private property and freedom of religious confession,
affirmed by political theorists belonging to the tradition of liberal-
ism. Indeed, Finnis contended that the standard form of modem
declarations of basic human rights failed to bring out the precise
senses in which the securing of even morally fundamental rights,
like the right of an innocent person not to be intentionally killed,
presupposed the existence of some containing social-political frame-
work based in principles of the common good. This was so, he
suggested, because the distinctively modem conception of human
rights implied the sort of dualistic relationship, characteristically
assumed by the classic theorists of liberalism, between the basic
moral and political rights held by the individual person and the
public constraints upon the exercise of these rights imposed by the
obligations specified in a rule of law.
Finnis maintained that the dualism of individual rights and legal
duties was a modernistic illusion generated by the Hobbesian
Thomism and the Philosophy of Natural Law 213

tradition of natural right, and that it had no equivalent in either


Roman law or the classical and medieval traditions of natural law
philosophy. Although the ancestor of the modem terminology of
rights, Finnis argued, the Roman law term jus had implied none of
the modem contrast between rights and duties, but had frequently
been used by jurists to signify 'the assignment made as between
parties of justice according to law'. Subsequently, Aquinas had
understood jus to mean the just thing itself, where by thing he
meant composite 'acts, objects, and states of affairs, considered as
subject-matters of relationships of justice'. It was only in the work of
later theorists such as Suarez and Grotius, Finnis pointed out, that
the indivisibility of rights and duties had begun to be fractured, as
jus came to be identified as essentially a quality, like a moral power
or a liberty, which was possessed by the individual in his capacity
as a holder of rights in something like the modern sense. For Finnis,
this transformation in the concept of rights culminated in the
distinction drawn by Hobbes between the idea of jus or right -
which related to the liberty enjoyed by the individual by virtue of
the absence of any external legal constraint - and the idea of lex or
law - which, according to Hobbes, related to the obligations
imposed by the positive law of a political community. However,
Finnis argued that, with this distinction, Hobbes had effectively
deprived the concept of rights of all normative significance, by
placing the individual person who was supposed to be the subject
of moral rights outside the sphere of any 'juridical relationship ...
fixed by law'. 19
In contrast to political theorists in the tradition of Hobbes, Finnis
implied that rights were misconceived if understood as liberties
whose exercise depended upon the absence of the external con-
straints imposed by civil law. Like Dworkin, he recognized that the
philosophical vindication of the normative status of moral and
political rights required the abandonment of the assumption of a
fundamental opposition between individual liberty and the con-
straints of public order. However, whereas Dworkin explained the
justice of public constraints on individual freedom in terms of a
foundational right to equality of concern and respect, Finnis made it
clear that the justification for such constraints depended upon
principles of political morality which could not be explained in
terms of the concept of individual rights.
According to Finnis, the schedule of moral rights intrinsic to the
idea of the rule of law was the formal codification of an essential
214 The Defence of Natural l.Jlw
aspect, or component, of the common good promoted by the whole
legal and political structure of society. In this sense, the absolute
normative status attaching to such rights derived from the same
principle of political morality which justified the public constraints
upon their exercise. Finnis argued that these constraints were
necessary for the realization of both the moral rights held and
exercised by individuals and the other basic values constitutive of
the common good. Hence, he entirely rejected Dworkin's view that
the governmental institutions of a just society were bound to
preserve strict official neutrality between rival conceptions of the
good. On the contrary, he affirmed that a political community was
entitled in justice to enforce fully public standards of morality,
provided that these standards were supportable in terms of the
fundamental requirements of the common good.
Like Oakeshott and Hayek, Finnis called into question the
legitimacy of the modern political order. However, he did not
share the negativity of these theorists about what they took to be
the teleocratic character of the advanced industrial societies of the
West. Although Finnis defended the institution of private property,
Natural lAw and Natural Rights was certainly not written as an anti-
socialist defence of modern liberal society. At no stage did Finnis
identify the principles of natural law with the organizing principles
of the modern free market economy. Even less did he recognize any
conflict between the idea of individual moral rights and the policies
of redistributive taxation and centralized economic management
through which the postwar Western democracies had maintained
the landmark institutions of the modern welfare state. In fact, Finnis
implied that the political morality of liberalism, as interpreted by
Oakeshott and Hayek, could provide no legitimation of the modern
state by virtue of its assumption of the moral sovereignty of
individual rights.
In the latter respect, Finnis challenged the ruling tradition in
political philosophy with which Oakeshott was aligned in a
Hobbesian sense, Nozick in a Lockean sense, and Rawls and
Dworkin in a Kantian sense. For example, in Natural lAw and
Natural Rights, Finnis explicitly repudiated the ethical and meta-
physical ideas central to the theory of natural right which Oakeshott
drew upon in defending the concept of the state as a societas.
Whereas Oakeshott identified the principles of legal morality with
the European tradition of liberal constitutionalism, as represented
by the work of Bodin, Hobbes, Spinoza, Kant and Hegel, Finnis was
Thomism and the Philosophy of Natural lAw 215

clear that this tradition was best defended in terms of the classical
and medieval traditions of natural law philosophy which the
Hobbesian tradition of natural right had superseded. Accordingly,
he did not attach the same fundamental moral importance as did
Oakeshott and Hayek to the ideological contrast between the
modem liberal constitutionalist tradition of civil government and
the twentieth-century tradition of continental totalitarianism. In-
deed, in Nuclear Deterrence, Morality and Realism, Finnis concluded
that the secular liberalism of the West, no less than the Marxism-
Leninism of postwar Eastern Europe, had been deeply implicated in
the subversion of the principles of political morality upheld in the
philosophy of natural law.

ii. NUCLEAR DETERRENCE AND THE LEGITIMACY OF THE


MODERN POLITICAL ORDER

Finnis wrote Nuclear Deterrence, Morality and Realism in collaboration


with Joseph M. Boyle and Germain Grisez. The book provided a
general survey of the deterrent strategies which had underpinned
the postwar deployment of nuclear weapons against the Soviet
Union by the Western powers generally, and by the United States
in particular. The authors recognized that the American deterrent
strategy had been significantly modified since the original enuncia-
tion of the doctrine of massive nuclear retaliation by John Foster
Dulles on behalf of the Eisenhower Administration in January 1954.
Nevertheless, they argued that, despite the shifts in strategic
position reflected in the various defence policy initiatives of the
Kennedy, Nixon, Carter and Reagan Administrations, the American
strategy of nuclear deterrence during the postwar period had
consistently involved two fundamental components: first, the
threat of final massive nuclear retaliation against the major mili-
tary, political and economic centres of Soviet society in the event of
an all-out Soviet attack on the West; and, second, the threat of
limited nuclear retaliation against Soviet cities in the event of Soviet
nuclear attacks on American cities. In both respects, the coherence
of the Western nuclear strategy had presupposed the credibility of
the deterrent threat not only to destroy military and industrial
targets in the Soviet Union, but also to inffict unacceptable losses
on its civilian population.
216 The Defence of Natural lAw

Published in 1987, Nuclear Deterrence, Morality and Realism con-


veyed little anticipation of the imminent collapse of Soviet hege-
mony in Eastern Europe. Whether the fact of Soviet capitulation in
the late 1980s should be taken as a vindication of the strategies of
nuclear deterrence adopted by the Western nations during the Cold
War is, of course, a momentous question, and one to which history
will deliver no very straightforward answer. However, to the extent
that the retreat of Soviet power in Europe after 1989 is considered to
mark the geopolitical triumph of the West, then this alleged
triumph, whether real or illusory, does not in any way negate the
burden of the moral case against the postwar nuclear strategy
presented in Nuclear Deterrence, Morality and Realism. As it hap-
pened, Finnis, Boyle and Grisez accepted that the postwar strategy
of nuclear deterrence had been necessary, both to maintain inter-
national peace, and to preserve the distinctive sodal and political
values of the Western democracies. Indeed, the authors claimed that
the democracies had had a clear moral responsibility to defend their
political independence against Soviet domination, a responsibility
which the authors believed to have derived from the traditions of
common morality that shaped the defining political commitments of
the Western nations.
In claiming this, the authors assumed an absolute distinction
between the constitutional governments of the Western liberal
democracies, which met the formal moral requirements for a just
society, and the Marxist-Leninist regimes of the Soviet bloc which
did not. The Western democracies recognized rights to the private
ownership of property and capital, encouraged active participation
by the individual citizen in the political process, and permitted full
freedom of choice in education, marriage, vocation and religious
confession, together with full freedom in scientific and speculative
enquiry. Above all, the constitutional structure of the Western
democracies was such that it bound their governments to respect
human rights, and to act in deference to the institutional morality of
the rule of law which secured these rights. Marxism-Leninism, by
contrast, challenged the legitimacy of all private ownership of
property and the means of production. Moreover, the actual
practice of Soviet communism had involved the institutionalized
disregard of human rights and the systematic repudiation of the
constraints of the rule of law - as was witnessed for the authors by
the permanent threat within Soviet society of 'arbitrary arrest,
unfair trial, loss of civil rights, indefinite incarceration in labour
Thomism and the Philosophy of Natural lAw 217

camps or mental"hospitals"', together with the constant use made


by the governing regime of such devices as 'official murders,
tortures ..., and brainwashing'. Indeed, the abuse of legal proce-
dure essential to the nature of the Soviet regime had been under-
written by the dominant ideology of Marxism-Leninism, which
licensed the sacrifice of 'all human values and lives to the schemes
of the Party'.20
The authors accepted that the common morality underlying the
political order of Western constitutionalism would have been
subverted by the geopolitical victory of Marxism-Leninism. In this
sense, the survival of the common morality of the West had
depended upon the maintenance of a credible nuclear deterrent.
Nevertheless, while accepting that nuclear deterrents had been
justifiable as the means to the legitimate end of preserving the
common morality of the West, the authors also argued that the
postwar strategies of nuclear deterrence contravened a central
constitutive requirement of that common morality. This was so
because the common morality of the West had been decisively
influenced, in both its content and structure, by the system of
absolute and exceptionless moral prohibitions which distinguished
the Judaeo-Christian tradition in ethics. Within this tradition, the
authors stressed, an overriding importance had always been
assigned to the moral norm which unconditionally excluded the
intentional killing of the innocent, either as an end in itself or as a
means to some other end.
In developing their case against the postwar strategies of nuclear
deterrence, Finnis and his co-authors drew heavily on the argu-
ments concerning the nature of a just war formulated by medieval
theologians and philosophers in the Judaeo-Christian tradition.
Many of these arguments were summarized by Aquinas, whose
specification of the conditions necessary for a just war represented
perhaps the strongest historical link between the medieval philoso-
phy of natural law and modern international law. In common with
other medieval theorists, Aquinas distinguished between principles
pertaining to the idea of jus ad bellum - that is, the just cause of war -
and those pertaining to the idea of jus in bello, or justice in the conduct
of war. The first set of principles described the just causes of war,
together with the legitimate aims to be sought in war. These
principles required that war should always be initiated on the
declaration of a lawful government, and that war should only be
waged by a state in order to right a specific wrong, like the
218 The Defence of Natural Law

aggression of another state, and to further ends consistent with the


restoration of a just peace. Hence, the basic principles of jus ad
bellum restricted the concept of a just war to wars waged for the
purposes of self-defence, while also excluding from the range of
morally permissible war aims the systematic destruction or un-
conditional surrender of an enemy state. The principles pertaining
to the idea of jus in bello, by contrast, specified conditions of just
relations to be observed by states in the actual prosecution of a war,
irrespective of the justice of its cause. Crucially, these principles
required that a state waging a just war should refrain from the
deliberate killing of non-combatant members of the enemy society.
In traditional just-war theory, such non-combatant civilians were
regarded as innocents - not in the sense that they were morally
guiltless, but in the respect that they took no direct part in resisting
or attacking the military forces of the opposing state.
Finnis, Boyle and Grisez claimed that the leading ideas of just-
war theory survived as integral components of the common
morality of the Judaeo-Christian tradition. The authors diverged
from the orthodox pacifist position, then, in affirming that modem
states possessed an indisputable background moral right to wage
war. Accordingly, the authors denied that the common morality of
the Judaeo-Christian tradition excluded such forms of intentional
killing as capital punishment for those convicted of particular
crimes, or the killing of enemy combatants in the prosecution of a
war of self-defence. Nevertheless, they insisted that the common
morality of the West affirmed the overriding moral status of the
distinction, as recognized in traditional theories of the just war,
between the combatant and non-combatant members of an enemy
society. Indeed, they argued that the prohibition placed by these
theories upon the intentional killing of non-combatant civilians was
underwritten by the basic moral norm forbidding the intentional
killing of the innocent. It was this norm that excluded modem
strategies of total war against enemy societies, waged on the
assumption of the collective guilt of all their members, together
with war aims, like punitive retaliation or unconditional surrender,
which inflicted losses upon an enemy society in excess of those
warranted by the legitimate ends of self-defence. The norm also
prohibited the intention to kill the innocent, as well as their actual
killing. In doing so, the norm absolutely excluded postwar Western
strategies of nuclear deterrence, since the threats of limited strikes
against Soviet cities and final massive retaliation against Soviet
Thomism and the Philosophy of Natural Law 219

society which conferred credibility upon these strategies had


presupposed the clear and avowed intention to kill Soviet people,
whether civilians or military personnel, in their capacity as non-
combatants.
Finnis and his co-authors regarded the prohibited intention to kill
innocent non-combatants as an essential feature of all existing
systems of nuclear deterrence. Accordingly, they asserted that
fidelity to the common morality of the Judaeo-Christian tradition
required that Western governments should adopt the policy of
immediate and, if necessary, unilateral renunciation of those
elements of the deterrent strategy which involved the threats of
final nuclear retaliation against Soviet society and retaliatory strikes
against Soviet cities- and also, presumably, the unilateral renuncia-
tion of those elements of the deterrent strategy which threatened
nuclear retaliation against the civilian population of any other
potentially enemy state. Unilateral nudear disarmament was taken
by the authors to be an unconditional moral duty, to which the
Western nations were subject regardless of the consequences of
their adoption of the policy. The authors conceded that nuclear
disarmament would have harmful consequences, in that it would
jeopardize the security of the Western nations, and thereby under-
mine the efforts of the West to promote its moral and political
values in the contemporary world. Nonetheless, they suggested that
the entire debate about nuclear deterrence had been obscured by
the preference of both its supporters and opponents for consequen-
tialist procedures of practical deliberation.
According to the authors, consequentialism was inadequate to the
question of nuclear deterrence because it confused moral reasoning
with the methods of rational decision appropriate to the efficient
resolution of technical problems. Specifically, consequentialist
methods of practical deliberation recognized no morally significant
distinction between different means for the realization of given
ends. However, the authors submitted that the justifying ends of the
strategy of nuclear deterrence could not be evaluated indepen-
dently of the means chosen for their realization. On the contrary,
the authors stressed that the moral implications of the policy of
maintaining nuclear deterrents went beyond the terms of a cost-
benefit analysis of the effectiveness of this policy in preserving the
values of Western democracy, to bear upon the self-respect and
well-being of the members of any society which accepted the threat
of massive nuclear retaliation as the means for its own defence.
220 The Defence of Natural Lllw

The authors argued that the inadequacy of consequentialism as a


response to the moral dilemma posed by nuclear deterrents
reflected its status as a procedure of practical deliberation which
subverted the authority attaching to the norms and precepts that
structured the common morality of the West. These norms and
precepts, they claimed, could be defended only through a theory of
ethics in which first principles of morality were grounded in the
basic goods and values constitutive of human well-being and
fulfilment. Under the terms of the essentially naturalistic theory of
ethics that the authors went on to construct, the class of morally
permissible actions was identified not with those actions which
maximized beneficial consequences, but with those the conscious
willin~ of which remained 'compatible with integral human fulfil-
ment'. 1 The theory thus established, as consequentialism did not,
a method of practical reason in which an intrinsic moral status was
assigned to the basic value of life. In doing this, the theory also
vindicated the moral norm forbidding the intentional killing of the
innocent, by ruling out any action which involved the direct, or
instrumental, choice to 'destroy, damage, or impede some instance
of a basic good for the sake of an ulterior end'.22 The authors denied
that their theory prohibited the deliberate killing of enemy comba-
tants for the purposes of self-defence against unjust aggression,
provided that such deaths were an indirect side-effect of actions
intended to thwart that aggression. Nevertheless, they did insist
that the theory excluded the postwar strategies of nuclear deter-
rence adopted by the West, since these strategies unmistakably
involved a direct choice to destroy the lives of Soviet people in
order to promote the extrinsic goods of liberty and justice embodied
in the political arrangements of the Western democracies.
Finnis and his co-authors acknowledged that the Western nations
would not renounce their nuclear deterrents on any unilateral basis.
To this extent, they implied that the claims to moral authority
advanced by the Western states were radically flawed, since the
strategy of nuclear deterrence, seen as essential to the survival of
these states, necessarily violated the principles of 'a legitimacy
founded on justice, not on calculations of advantage in which the
lives of innocents might be directly sacrificed in the interests of
others'.23 At the same time, the authors held that the strategy of
nuclear deterrence adopted by the Western liberal democracies
provided no general justification for the rejection of their strictly
legal authority. Acts of terrorism or revolutionary violence against
Thomism and the Philosophy of Natural Law 221

the state, the authors emphasized, were themselves prohibited by


the same moral norm which excluded the strategy of nuclear
deterrence as a form of state terrorism. The only realistic response
to the balance of nuclear terror in the modem world, they
concluded, was to repudiate the secular ethics of consequentialism
in favour of prayer and the profession of the Christian faith, from
the perspective of which the calculable harms of unilateral disarma-
ment could be understood in their relation to a containing provi-
dential order directed by God.
This was why the authors condemned the allegiance to Western
liberal democracy of those Christians who, during the Cold War,
had defended nuclear deterrence as a legitimate means for the
preservation of Judaeo-Christian civilization against the infidelity
of Marxism-Leninism. This defence of nuclear deterrence, they
complained, involved a fundamental confusion of 'the socio-poli-
tical order of the West' with 'the Kingdom of God', a confusion
which represented nothing less than an attempt to harmonize the
moral law contained in the Gospel with 'the secularism of the
liberal democratic societies' in terms ultimately subversive of
authentic Christian values. For Finnis and his co-authors, how-
ever, the drift towards secularization in the West, of which the
postwar nuclear balance of power was the culmination, had served
only to erode the moral boundaries between Marxism-Leninism
and the philosophy of liberal democracy, since, in accommodating
themselves to the strategy of nuclear deterrence, both ideologies
had worked to transform 'the heritage of Christendom into a house
divided against itself and polluted with the blood of the innocent'.24
In Nucll!llr Deterrence, Morality and R.l!lllism, Finnis implied that
quietistic fidelity to the moral traditions of Judaeo--Christian
civilization would promote a reconstruction of the contemporary
international political order in accordance with the principles of
natural law. Yet he did not explain the character of the institutional
forms in which this attitude of faith could engage meaningfully
with the political power distributed throughout the modem inter-
national system.
In general, Finnis accepted that the legally constituted sovereign
state was the principal source of legitimate political authority in the
modem world. In Natural Law and Natural Rights, he affirmed that
modem states were complete associations in the respect that their
legal systems purported, among other things, to be 'the supreme
authority for their respective community, and to regulate the
222 The Defence of Natural lAw

conditions under which the members of that community [could]


participate in any other normative system or association'. To be
sure, Finnis acknowledged the existence of an international com-
munity, including the 'vast common stock of technology, systems of
intercommunication, ideological symbolisms, [and] universal reli-
gions', which significantly qualified the claims of a modem national
state to be 'a complete community' and 'an exclusive source of legal
obligation'.25 Nonetheless, there was no obvious reason why this
international community, as Finnis described it, should promote the
establishment of a system of international law whose institutiona-
lized agencies of coercive enforcement would do better than the
postwar balance of nuclear terror in honouring the absolute rules
and prohibitions that formed the common morality of the West.
Indeed, it remained largely unclear why the moral and cultural
resources of the international community should be identified
exclusively with the Judaeo-Christian tradition of the West from
which Finnis sought to derive the core requirements of the natural
law. However, this uncleamess made it difficult to see what precise
normative status Finnis considered to belong to the principles of
natural law - particularly given the conspicuous lack of any
universal allegiance to the common morality of the West among
the multiplicity of sovereign states which make up the modem
international system.
In Nuclear Deterrence, Morality and Realism, Finnis denounced any
compromise between the moral requirements of the natural law and
the ideology of secular liberalism. He also insisted that these
requirements were rationally intelligible only from the perspective
of the Christian faith. In general, however, he asserted no necessary
relationship between the articles of Christian belief and the uni-
versal principles of natural law. In some contexts, of course, he
plainly intended to relate these principles to the metaphysical
standpoint of Christian theism. In Fundamentals of Ethics, for
example, he argued that the objective status of the basic human
goods and values derived from their relationship to 'the overall
pattern and common good of the created universe' as maintained
by God. 26 Yet in Natural lAw and Natural Rights, he claimed that the
principles of natural law admitted of an entirely secular derivation,
which involved no metaphysical assumptions regarding the exis-
tence, nature or will of God. Indeed, he emphasized that it had been
an essential feature of the Thomist system that, for Aquinas, the first
principles of natural law were self-evident to human reason,
Thomism and the Philosophy of Natural lAw 223

whereas the knowledge that union with God ranked as the final
human end could be acquired only through revelation.
In defending the philosophy of natural law, Finnis conceived
Thomism as possessing a universal authority, which served to
distinguish it from the secular traditions of natural right, I<antian
liberalism, utilitarianism and Marxism-Leninism. Nevertheless,
Finnis confronted neither the historical particularity of the original
Thomist system, nor the contestability of the metaphysical assump-
tions upon which the Thomist tradition in moral and political
philosophy depended. Even less did he consider whether the
progressive secularization of modern Western society brought into
question the normative authority of the Thomist interpretation of
natural law as a basis for public policy in contemporary states.
On occasion, Finnis claimed that the reconstruction of natural law
principles in ethics and legal philosophy would support the
conservative moral teachings of the Roman Catholic Church. In
Natural lAw and Natural Rights, he was explicit that the methodol-
ogical requirements of practical reasonableness provided an indep-
endent philosophical justification for the absolute prohibitions
imposed by the Church on the killing of the innocent, on lying
and on anti-procreative sexual acts. Earlier, in 'Natural Law and
Unnatural Acts' (1970),27 he had set out a naturalistic ethical theory
in support of the Christian ideal of monogamous marriage affirmed
in the Encyclical Humanae Vitae. Likewise, in 'The Rights and
Wrongs of Abortion' (1973),28 he had invoked natural law princi-
ples not only to exclude abortion, but also to discredit the wide-
spread assumption that the moral questions raised by abortion were
to be resolved in terms of the concept of individual rights.
At no stage, though, did Finnis call for the restoration of a political
predominance for organized Christianity in the modern state, or
insist that the secular authority should be licensed to use the
coercive sanction of civil law to enforce the traditional moral
teachings of the Church. On the contrary, in Natural lAw and
Natural Rights, he explicitly denied that the principles of natural
law describing the requirements of the common good permitted the
state to impose moral or cultural uniformity upon the political
community. Moreover, the basic goods that for Finnis embodied
the first principles of natural law stood out as being goods to be
pursued by individual persons, and did not obviously presuppose
any public context for their objective realization more coercive than
the constitutional order of the modern European state. Indeed, the
224 The Defence of Natural Law

formal system of law and political order defended in Natural Law


and Natural Rights conformed broadly to the institutional structure
of the modem European state whose emergence Oakeshott re-
garded as having involved a decisive break with the foundational
principles of political legitimacy central to the great rational-natural
philosophy of Aristotle and Aquinas.
In these respects, it remains hard to avoid the conclusion that the
orthodox Catholic interpretation of the natural law, to which Finnis
appealed in the contexts of nuclear deterrence and abortion, should
be viewed as a controversial moral preference, asserted in the multi-
confessional circumstances of modem secular liberal society. After
all, in Nuclear Deterrence, Morality and Realism, Finnis himself
recognized that freedom of religious confession, and freedom of
scientific and speculative enquiry, ranked as political values inte-
gral to the common morality of the West. With this recognition,
however, Finnis only underlined the extent to which the tradition of
common morality in the West had itself served to undermine the
intellectual and political authority of the defining moral norms and
prohibitions of Judaeo-Christian civilization.
In one sense, then, Finnis was manifestly an assailant of modem
liberalism. He affirmed, most notably in Nuclear Deterrence, Morality
and Realism, that, in subverting the integrity of the natural law, the
ideology of liberal democracy had undercut the claims of the
contemporary political order to possess genuine moral legitimacy.
Yet in another sense, evident particularly in Natural Law and Natural
Rights, he implied that the philosophy of natural law was to be
conceived as a distillation of the whole of Judaeo-Christian civil-
ization - including, of course, the principles embedded in the
Judaeo-Christian tradition which had constrained the modem
state to respect the freedom of the individual in matters of moral
and religious belief. To this extent, he ultimately agreed with
theorists like Fuller, Oakeshott, Hayek, Hart, Rawls and Dworkin
about the form of social and political organization which most
faithfully answered to the aspirations of the common morality of
Western civilization. To be sure, Finnis defended a retributive
theory of punishment,29 which set him at odds with Hart, and
advocated a restrictive legal policy towards pomography,30 which
put him in conflict with Dworkin regarding the best constructive
interpretation of the United States Constitution. However, these
differences were essentially differences about the principles of
political morality which yielded the most persuasive justification
Thomism and the Philosophy of Natural Lllw 225

for the legal and constitutional arrangements of the liberal democ-


racies of the West.
It is significant that Finnis developed compelling arguments of
political morality for rejecting the legitimacy of the Marxist-Leninist
ideology of Eastern Europe. It is equally significant that he did not
identify the cause of natural law with the values of the free market
economy defended by Hayek, or with the retreat from the manage-
rial state demanded by Oakeshott. It is also of the first consequence
that he set out a complex theory of distributive justice, which
avoided the implication of Rawls's and Dworkin's work that the
ideals of social democracy necessarily presupposed an egalitarian
standard of political morality, or that they necessarily excluded a
teleological justification of political authority. Above all, it is
important that he chose to defend the common morality of the
West in terms of an ethics grounded in a theory of the substantive
goods and values constitutive of human nature. These are all
powerful reasons for concluding that Finnis provided a more
satisfactory vindication of the moral and political ideas of liberal-
ism than any of the other theorists examined in this volume.
Nevertheless, Finnis's success in this respect did not suffice to
clarify the status, or to underwrite the authority, of the philosophy
of natural law within modem liberal society.
6
Conclusion

Fuller, Oakeshott, Hayek, Dworkin and Finnis all sought to define


the essential nature of the modem rule of law. In contrast to jurists
belonging to the school of legal positivism, they did not restrict
themselves to the descriptive analysis of the distinguishing marks
and attributes of the modem legal system. Instead, they looked back
to the procedures of analysis developed within the tradition of
natural law. They did so in the respect that they tried to explain the
character of law in terms of its relation to fully normative principles
of political morality. What united the theorists in this enterprise was
their concern to formulate abstract principles of justice and general
political morality that affirmed the overridingness of the rights
which individuals held against society and the state.
Fuller was concerned with the rights of the citizen underwritten
by the procedural principles of natural justice - rights which, he
claimed, had been honoured by the methods of adjudication
adhered to in the common law tradition. Oakeshott argued for an
essential congruence between the procedural morality of law and
the structure of the legal system that distinguished the states which
began to establish their sovereign authority in Europe during
the sixteenth century. Hayek emphasized the special connection
between the rights implicit in the formal organization of an
advanced rule of law and the rights pertaining to property and
contract which organized the modern free market economy.
Dworkin claimed that the rights secured by the procedural moral-
ity of law, together with other rights, like those to democratic
participation and private property, were all derived from the
foundational right of each individual person to equal concern and
respect in the provision of constitutional liberties and in the
distribution of the social and economic resources of his commun-
ity. As a central component of what Dworkin called the constitutive
morality of liberalism, this egalitarian right provided an underlying
justification for the Keynesian-welfare consensus that dominated
the progessive agenda in American politics from Roosevelt's New
226
Conclusion '127

Deal up to the fragmentation of Johnson's Great Society coalition


during the 1970s. For his part, Finnis argued that the natural law
enshrined certain basic human rights, like the right of a person not
to be knowingly condemned on false charges, which were to be
understood as the obverse of the absolute moral prohibitions
embedded in the Judaeo-Christian culture of Western civilization.
Fuller, Oakeshott, Hayek, Dworkin and Finnis not only formu-
lated complex theories about the nature of individual rights. They
also constructed ideal forms of political and economic organization
which were supposedly consistent with the proper recognition of
the rights demanded by justice. It was by appeal to such utopian
models of law and society that the theorists sought to assess the
legitimacy of contemporary legal, political and economic institu-
tions. However, none of these ideal models satisfactorily established
principles of law and government which were internally consistent
with the integrity of the rights of the individual that the theorist
who constructed it alleged to be the foundation of political
legitimacy in the modem world.
In The Morality of Law, Fuller implied that the principles of
procedural justice intrinsic to the idea of a legitimate rule of law
were breached by many of the managerial functions assumed by
modem governments. However, the principles of legal morality laid
down by Fuller failed to yield any determinate criteria - logical or
evaluative - for discriminating between rival constitutional systems,
between different forms of economic organization, or between the
various substantive ends promoted in the actual programmes of
legislation adopted in different societies.
Oakeshott followed Fuller in affirming that the basic moral and
political rights of the individual were underwritten by the proce-
dural morality of law. He argued that this procedural morality
grounded the legitimacy of the rule of law maintained by the
modem state in its character as a system of non-purposive or
non-instrumental rules of conduct. He then went on to challenge
the legitimacy of modem European states in the respect that the
teleocratic engagements of their governments had subverted the
moral integrity of the rule of law.
In the event, Oakeshott did not succeed in specifying or defend-
ing the principles of political morality which he believed to
invalidate the teleocratic concerns of governments in the contem-
porary world. According to Oakeshott, the procedural principles of
legal justice represented the only morally acceptable conditions for
228 The Defence of Natural Law

recognizing the legitimacy of the monopoly on lawful coercive


claimed by the office of government of a modern sovereign state.
However, it was left unclear why policies designed to create and
maintain a system of public welfare provision, or policies designed
to advance any other public good or purpose that Oakeshott
considered teleocratic in nature, could not be implemented
through a procedurally valid exercise of the sovereign rights of
legislation and executive rule which he regarded as being inherent
in the constitution of the modern state. Of course, Oakeshott
contended that public policies of this sort unavoidably led to
coercive restrictions upon individual liberty which were different
in kind from the morally binding obligations imposed upon the
citizen by the non-purposive rules of a legal order. Even so,
Oakeshott did not convincingly explain the moral status of the
nomocratic conception of law and government which he associated
with the ideal of the state understood as a societas.
In On Human Conduct, Oakeshott took it to be essential to the
character of the rule of law, as a purpose-free form of social order,
that its legitimacy was grounded in no principles of justice or
political morality which remained external to its own formal
structure. In sharp contrast to Dworkin and Finnis, then, he did
not specify the permanent human ends and interests actually
advanced by the law in such a way as to provide the basis for a
fully purposive justification of the authority of law. Indeed, Oake-
shott defined the fundamental reality of law to the exclusion of all
such ends and interests - including whatever human ends and
interests dictated the need to maintain a basic minimum of coercive
legal regulation in the first instance. As a result, he established no
adequately constructed moral criteria, least of all purposive criteria,
which sanctioned the cardinal distinction that he wanted to draw
between the rule of law and the teleocratic mode of human
association. In failing to establish such criteria, however, Oakeshott
failed- and failed momentously- to make clear in what morally
significant respects the legitimate coercive control of society, which
was required to protect the rights guaranteed the legal subject
under a procedurally virtuous rule of law, could be differentiated
from the instrumentalities of coercive regulation which he believed
to characterize the managerial enterprises of modern governments.
Like Oakeshott, Hayek stressed that the legitimacy of the rule of
law derived from its conformity to certain internal principles of
procedural morality. Far more than Oakeshott, though, Hayek
Conclusion 229

argued for a formal relationship between the procedural principles


governing the rule of law in modem society and the organizing
principles of the modem free market economy. He also claimed that
the fundamental principles of political legitimacy were to be
explained, not in terms of Hobbes's philosophy of natural right
(as Oakeshott, of course, maintained), but in terms of the methods
of adjudication that had distinguished the practice of the courts in
the English common law tradition. In claiming this, Hayek attached
particular importance to the provenance and character of the rights
to private property and freedom of contract which came to order
the market economy in England. For Hayek, these rights had been
articulated as part of the rules of just conduct which comprised the
private law that evolved in England through the continuous
adjudication of disputes by independent courts. He emphasized,
further, that the rights and duties determined by the ordinary
courts had given formal legal expression to the reciprocally
binding expectations between private individuals, as engendered
by their voluntary transactions in the pre-political community. In
this way, he suggested, the rules of just conduct discovered by the
courts had grounded the conventions of the market economy in
standards of equity and morality that arose spontaneously from the
traditions and customs which constituted the historical fabric of
English society.
In The Constitution of Liberty, Hayek formulated a negative
definition of political liberty. This definition provided that the
individual should be free to exercise his rights in a private sphere
that was distinguished by the absence of coercion. Hayek went on to
argue that the sphere of justice itself was described by those legal
rules which served to demarcate the private domains of different
individuals. Accordingly, he denied that the concept of justice could
have legitimate application to the social order as a whole, or to the
prevailing distribution of goods and opportunities embodied in its
objective structure. The spontaneous modes of economic production
and distribution characteristic of early market societies in the West,
he maintained, had in fact been profoundly disturbed by the
growth of collectivist forms of economic organization, especially
where these had encouraged the assumption that the state was
directly responsible for the promotion of greater social justice. In so
transforming the understanding of the relationship between state
and society, he complained, modem socialism had eroded the
distinction, crucial to the integrity of the liberal constitution,
230 The Defence of Natural lAw

between the requirements of 'formal justice and formal equality


before the law' and the ideals of 'substantive justice and equality' .1
Hayek insisted that the moral primacy of individual rights
demanded that the coercive powers wielded by the state should
be restricted to the prevention of violence and theft, and to the
enforcement of contracts. However, his minimalist specification of
the legitimate functions of the state did not answer to the reality of
modern political arrangements in the West. In particular, Hayek
ignored the extent to which the centralized bureaucratic admin-
istration of society remained indispensable to the efficient operation
of modern free market capitalism. As a result, he simply assumed
the legitimacy of the institutional means of judicial and executive
coercion by which the modern state enforced compliance with the
rules of just conduct that governed the market economy. At no
stage, though, did he confront- still less resolve- the enormously
difficult question of whether the monopoly of the modem state
upon these instrumentalities of official power involved any prima
facie violation of the moral rights of the individual person. Nor,
crucially, did he establish why distributions of property generated
through market transactions that accorded with existing rules of
private law prevailing within society should not be condemned for
their deviation from non-procedural norms of justice or fairness.
Dworkin followed Hayek in asserting the centrality of the idea of
individual rights to the liberal theory of justice. He also followed
Hayek in regarding an economic system based on free markets and
the private ownership of resources as being itself an essential
requirement of the liberal theory of justice. Unlike Hayek, though,
he did not accept that the exercise by the individual of his legitimate
rights to private property and freedom of contract was competitive
with the range of official functions discharged by governments in
maintaining the landmark institutions of the modern welfare state.
Indeed, he insisted that the moral and political rights of the
individual citizen could be secured only by public policies of state
which promoted distributional equality throughout the whole social
and economic structure of the citizen's community.
Like Rawls, Dworkin held that the implementation of such
policies represented no threat to the maintenance of the rule of
law under a liberal constitution. No less than Oakeshott and Hayek,
he recognized that the powers exercised by the state should be
circumscribed by the procedures inherent in its laws and constitu-
tion. However, he also claimed that the formal rights and liberties of
Conclusion 231

the citizen defined in the liberal constitution, as much as the


substantive rights secured by public policies of wealth redistrib-
ution, were sanctioned by the same foundational moral right of the
individual to equal concern and respect which lay at the heart of
Rawls's specification of the principles of justice as fairness. 1bis
basic egalitarian right, he argued, guaranteed that each citizen
should enjoy not only the minimum protection of the rule of law,
but also the opportunity to participate actively in civil society.
In developing his theory of individual rights, Dworkin rejected
the assumption, common among positivist jurists, that law and
society stood to each other in an essentially dualistic relationship.
Dworkin's own view of the relationship between law and society
was reflected in the theory of law as integrity set out in Law's
Empire. According to this theory, the coercive force exerted by the
state through the institutions and procedures of the law was
understood to flow from the standards of political morality embo-
died in the concrete social order whose existence the state pre-
supposed. Fundamental to the theory of law as integrity, as
Dworkin formulated it, was the idea that the modern state had a
stronger claim to legitimacy when it could be perceived to con-
stitute a community, whose members were committed to the under-
lying principles of justice and fairness that lent overall coherence to
its formal system of law and legal institutions. Contrary to
Dworkin's intention, however, this communitarian theory of poli-
tical association did not suffice to vindicate the legitimacy of
modern liberal society. Above all, the utopian ideal of law as a
community of principle was compromised by the element of
arbitrary coercion necessary to the enforcement of an effective legal
system in societies shot through with radical disagreement about
the meaning and proper practical application of their basic concepts
of justice and fairness.
Dworkin considered that the acceptance by the courts of the idea
of integrity as a methodological basis for adjudication marked the
decisive step in the transformation of the rule of law into the
framework for a morally principled political community. In its
character as an ideal method of judicial reasoning, however, law
as integrity did not compel the courts to adopt equality of concern
and respect as a governing principle of political morality for the
decision of hard cases. Indeed, the formal methodological con-
straints of integrity in adjudication remained entirely consistent
with the judicial interpretation of law in terms of principles of
232 The Defence of Natural Law

justice and fairness which actually conflicted with the requirements


of Rawlsian social democracy.
In his commitment to the Rawlsian theory of justice as fairness,
Dworkin sought to vindicate the moral authority of the modem
state by appeal to inherently controversial principles of political
legitimacy. In fact, his work was characterized by an underlying
presumption against any theory of political morality which re-
mained incapable of restatement in terms of the idea of individual
rights. For example, in such articles as 'The Great Abortion Case'
(1989) 2 and 'The Future of Abortion' (1989),3 Dworkin upheld the
constitutionally assured right of women to abortion affirmed in
1973 by the United States Supreme Court in Roe v. Wade, and
maintained that this judgment was coherent with the principle
assumed by the Court in earlier decisions that a person possessed
'a fundamental constitutional right to control his or her own role in
procreation'." Of course, he accepted that the explicit provisions of
the United States Constitution did not automatically exclude a
restrictive judicial policy towards abortion. Nevertheless, the readi-
ness with which he defended Roe v. Wade in these articles testified
to his bedrock conviction that contentious questions about public
morality in America were to be settled through an interpretation of
the meaning of the basic individual rights conferred by the
Constitution - rather than, say, in deference to the sort of absolute
moral prohibitions which Finnis associated with the natural law
tradition in ethics and legal philosophy.
The importance of Finnis lies in the vehemence with which he
repudiated the legitimacy of the modem Western political order in
Nuclear Deterrence, Morality and Realism. The liberal democracies of
the West had violated the common morality of Judaeo-Christian
civilization, he insisted, by reason of the fact that the means which
they had freely chosen for the defence of their economic arrange-
ments and constitutional system betrayed the ideal of 'a legitimacy
founded on justice, not on calculations of advantage in which the
lives of innocents might be directly sacrificed in the interests of
others'.5 Nuclear Deterrence, Morality and Realism demonstrated the
abiding relevance of natural law philosophy to the understanding
of the conduct of contemporary international relations. Finnis was
not alone in attempting to evaluate the moral presuppositions of
the modem instrumentalities of war and foreign policy. He was
distinguished from Fuller, Oakeshott, Hayek and Dworkin, though,
Conclusion 233

by virtue of his adherence to the classical Thomist tradition in


natural law philosophy.
Fuller attended to international law as a so-called horizontal form
of legal organization, which told against the Austinian assumption
that the essential character of law lay in its being 'a unidirectional
assertion of control over human behavior'.6 Even so, Fuller did not
consider whether the degree of governmental regulation of society
required to prosecute the foreign policy of a modem state strained
the integrity of the procedural morality of law. For Oakeshott and
Hayek, however, the mobilization of European societies during the
Second World War had gravely imperilled the procedural integrity
of law, not least because it had encouraged the postwar experiments
in economic collectivism which they regarded as having subverted
the rights and freedoms of the individual under the rule of law.
In 'The Rule of Law', Oakeshott emphasized that there existed an
unresolved tension between, on the one hand, the procedural
morality of the rule of law and the individual rights secured by
it, and, on the other, the endeavour of modem governments to
administer a policy concerned with 'the interests of a state in
relation to other states, the protection of these interests in defensive
war or in attempts to recover notional irredenta, and the pursuit of
larger ambitions to extend its jurisdiction'? In contrast to Oake-
shott, Dworkin recognized no prima facie conflict between the moral
reality of individual rights and the collective interests promoted by
the state in the conduct of its foreign policy. In general, he claimed,
controversial questions regarding the means and ends of a foreign
policy were legitimately - and unproblematically - decided in
accordance with the preferences of the political majority, as these
found expression in the democratically constituted institutions of
the political community. Of course, he did insist that, in America at
least, the formulation and execution of foreign policy by the elective
offices of state should remain subject to that part of the constitu-
tional law which defined the moral and political rights that citizens
held against the will of the democratic majority. It was in these
terms that he defended the civil disobedience directed against the
military involvement of the United States in Vietnam.
However, in 'Civil Disobedience and Nuclear Protesr (1983),8
Dworkin denied that the deployment of nuclear missiles by the
NATO allies transgressed any norm of political morality enshrined
in the United States Constitution. Unlike the opponents of the
234 The Defence of Natural Law

Vietnam War, he argued, campaigners for nuclear disarmament


were not able to claim a constitutional warrant for their civil
disobedience, since 'no government [violated] any principle of
legitimacy in acceJ'ting missiles that it would not have violated
by rejecting them'. Yet if Finnis was right, and strategies of nuclear
deterrence were indeed alien to the common morality of the West,
then the deployment of nuclear missiles by successive governments
in the United States represented a far more fundamental affront to
constitutional legitimacy than any misdeed perpetrated by the
Johnson and Nixon Administrations during the period of armed
intervention in South-East Asia.
For his part, Finnis regarded the postwar balance of nuclear
deterrents as undermining the sort of absolute moral distinction
drawn by theorists like Oakeshott and Hayek between the liberal
democratic societies of Western Europe and America and the
Marxist-Leninist regimes of the former Soviet bloc. At the same
time, he used the analysis of modem strategies of nuclear deter-
rence to demonstrate that both the Kantian and utilitarian traditions
in ethics had subverted the integrity of the common morality of
Judaeo-Christian civilization. In denouncing the ethics of secular
liberalism, however, Finnis did not only repudiate the principles of
political morality to which Oakeshott, Hayek and Dworkin ap-
pealed. He also implied that the containing philosophical tradition
in which these theorists were situated was that of the modern
Enlightenment, and that the moral and political ideas generated
by this intellectual movement remained radically inadequate to the
enterprise of making good the claims to legitimacy of contemporary
society.
Fuller, Oakeshott, Hayek, Dworkin and Finnis were uniformly
critical of the intellectual and cultural traditions associated with the
European Enlightenment. Even so, the theorists were simulta-
neously defenders of the Enlightenment, by reason of a common, if
frequently unacknowledged, allegiance to the public values embo-
died in the legal and constitutional organization of modem liberal
society. The basic fidelity of the theorists to these values was in no
way qualified by their shared conviction that the political morality
of secular liberal constitutionalism could no longer be supported in
terms of the specific ideologies constructed during the actual
historical period of the Enlightenment.
Fuller defined his proposed new legal science of eunomics in
conscious opposition to many schools of moral, political and legal
Conclusion 235

thought whose roots lay in the Enlightenment. He attacked Bentha-


mism in both its positivist and utilitarian forms. Again, he deplored
emotivism and prescriptivism as theories of moral value, and
ascribed their contemporary ascendancy in the Anglo-Saxon philo-
sophical world to the all-pervasive influence of the ethical doctrines
propagated by Hume and Kant during the Enlightenment. Yet at
the same time, Fuller also hoped that the science of eunomics would
expose the creative role played by human reason in the legal
organization of society. In this respect, eunomics provided a
justification, drawn from the study of legal institutions, for the
ruling ideas of the political morality of modem liberal constitu-
tionalism. In exploring the institutional basis of constitutional
government, Fuller came to accept that the moral authority of the
modem rule of law could no longer be explained in terms of the
idea of natural law as it had been understood in the Aristotelian-
Thomist tradition. It was for this reason that, in The Morality of Law,
he emphasized the crucial significance for modem jurisprudence -
and, by implication, for modern ethics - of the fundamental
distinction between 'a natural law of substantive ends and a
natural law concerned with procedures and institutions' .10 In
presupposing this distinction, however, Fuller's narrowly proce-
duralist theory of natural law served only to underscore the loss of
objective moral authority which stands as the main legacy of the
Enlightenment to modem liberal society.
Oakeshott is notorious for the remorselessness of his assault upon
the rationalist tradition in modem European civilization. In the
essays collected in Rationlllism in Politics, he explored the origins of
this tradition in the revolution in epistemology and metaphysics
brought about by the Cartesian philosophy. More generally, he
demonstrated the historical relationship between the method of
intellectual enquiry formulated by Bacon and Descartes and the
emergence of the scientistic style of political thought and practice,
as reflected in the despotisme eclaire of the continental regimes of the
eighteenth century, the drift towards economic dirigisme in the
industrialized societies during the later nineteenth century, and,
most notably, in the global condominium exercised by technocratic
capitalism and bureaucratic socialism throughout virtually all of the
twentieth century. Nevertheless, the trenchancy with which Oake-
shott attacked rationalism in morals and politics should not be
permitted to conceal the full measure of his implication in the
intellectual and political culture of the Enlightenment.
236 The Defence of Natural lAw

In Cambridge Review11 and Scrutiny12 articles from 1932, Oakeshott


scorned both the "'steady love of liberty'" which had guided
Locke's defence of limited government in England, 13 and the
rationalist dispositions which Bentham had inherited from the
eighteenth-century French philosophes. However, in 'Thomas
Hobbes',14 a Scrutiny article published in 1935, Oakeshott went on
to stress the systematic relationship which he found to have
obtained between Hobbes's analysis of the attributes of civil
government and the sceptical nominalist epistemology that in-
formed Hobbes's whole commitment to the moral-political ideal
of libertarian individualism. It was this radical metaphysical
individualism, Oakeshott was later to contend in the Introduction
to the 1946 edition of Leviathan, that marked Hobbes's ambivalent
relation to 'the philosophy of liberalism' .15
In his subsequent work, Oakeshott continued to dissent from the
progressive faith in constitutional democracy and political modera-
tion which in 1932 he had described as Locke's distinctive contribu-
tion to the English Enlightenment. In 'The Masses in Representative
Democracy' (1957),1 6 for instance, he argued that the success of
popular democracy in Europe during and after the nineteenth
century had irreparably damaged the integrity of the individual
rights and liberties secured under a rule of law. Even so, he did not
advocate any form of civil government which remained incompat-
ible with the philosophical presupposition of individual natural
rights that he believed to underlie the theoretical analysis of
political society constructed by Hobbes. To this extent, Oakeshott
prescribed no normative principles of political morality which were
essentially at odds with those celebrated in the great democratic
ideologies nurtured during the Enlightenment. Indeed, in On
Human Conduct, he set out an entirely secular justification of the
modem state, according to which the authority exercised by the
state was recognized to derive not from its conformity to a divinely
ordained natural law, but from the consent of its subjects.
It is certainly true that, in On Human Conduct, Oakeshott
identified the teleocratic engagements of European governments
during the era of the Enlightenment with the tradition of political
reflection in which the state was conceived as a universitas. Never-
theless, he concluded that the idea of the state as a societas had been
promoted in the modem period not only by theorists like Bodin,
Hobbes, Pascal, Hume, Burke and Salisbury, but also by Machia-
velli, Locke, Montesquieu, Kant, Paine, Madison and the other
Conclusion 237

contributors to the Federalist Papers, the original framers of the


United States Constitution, the authors of the Declaration des
Droits de l'Homme et du Citoyen, de Tocqueville, Mill and Lord
Acton. With this conclusion, departing as it did from opinions
reiterated throughout the 1930s, 1940s and 1950s, Oakeshott con-
firmed the crucial respects in which the understanding of the state
as a societas was as much an ideology of the Enlightenment as it was
a theoretical schematization of the legal and constitutional order of
the modem European state.
Oakeshott and Hayek are usually classed together as members of
the postwar movement of liberal anti-totalitarianism. However,
although both theorists attacked the tradition of European ration-
alism, Hayek claimed that this tradition had developed as a
consequence not just of the Cartesian revolution in epistemology,
but also of the transformation in the understanding of political
society brought about by Hobbes and his heirs. Hayek was thus a
more ruthlessly consistent assailant of the Enlightenment than
Oakeshott, since he acknowledged the underlying continuity
between the contractualist idiom in political philosophy and the
later emergence of the rationalist style in government and public
administration. It was Hobbes and his heirs, he argued, who had
articulated the principles of political morality which legitimated the
sovereign rights and powers of the absolutist states that superseded
the feudal order of the Middle Ages. He insisted, further, that the
analysis of the constitutional order of the modem state provided by
Hobbes had actually anticipated the contours of the positivist
jurisprudence of Bentham, Austin and Kelsen. In both respects,
Hayek implied that the legal systems established in the European
states during the sixteenth and seventeenth centuries had facilitated
the growth in the collectivist engagements of modem governments
which he, and Oakeshott, regarded as having compromised the
personal freedoms safeguarded by the rule of law.
Hayek described Lllw, Legislation and Liberty as a restatement of
the liberal principles of justice and political economy. Whatever the
reservations Hayek entertained about the culture of the Enlight-
enment, these did not alter the depth of his admiration for the ideal
of individual liberty under limited constitutional government, as
embodied in the modem tradition of moral and political philosophy
in the West. To be sure, he identified the core of this philosophy
with the work of Hume, Adam Smith, Burke and Maine, rather than
with that of Hobbes, Bentham and Mill. Nonetheless, in The
238 The Defence of Natural Law

Constitution of Liberty, he concluded that, in England, the political


morality of liberal constitutionalism had been central to the
experience of the Civil War and the Restoration, underwritten by
the Glorious Revolution of 1688 and by Locke's philosophical
vindication of the subsequent constitutional settlement, consolid-
ated throughout the eighteenth century, and celebrated in the
connections demonstrated by Hume, Blackstone and Burke
between the historic English Constitution, the practice of the
common law courts and the supreme value of individual freedom
under the law. Indeed, he went on to bring out the essential unity of
the basic ideas of political morality integral to the Whig tradition in
England with those adopted by the original drafters of the Con-
stitution in the United States and, in Europe, by Kant, von
Humboldt and the later continental theorists of the Rechtsstaat.
In these respects, Hayek was as uncritical a champion of Enlight-
enment liberalism as Ronald Dworkin. It is true that Dworkin
rejected the legal theory of Bentham and Austin. Yet he still
wholeheartedly embraced the rationalist tradition in modern moral
and political philosophy to whose development Bentham and
Austin had themselves contributed. This much was plain from
the determination with which he defended Mill's case for the
moral freedom of the individual, argued for Rawls's egalitarian
reformulation of the political morality of Kantian liberalism and,
most recently} 7 advocated the American formula of the Bill of
Rights as a constitutional corrective to the alleged authoritarianism
of Thatcherite Britain.
At no point in his work did Dworkin acknowledge that the
ideologies of the Enlightenment were crucial in understanding the
problematic status of the principles of political morality in play in the
modern world. His legal communitarianism was intended, in part,
to establish the senses in which a Kantian theory of individual
rights yielded the most rationally compelling justification for the
political institutions of contemporary Western society. However, he
did not consider the degree to which the metaphysical assumptions
of Kantian liberalism had undermined the objective authority of the
law and public morality actually enforced in the progressive
constitutional democracies of the United States and Western
Europe.
Finnis, by contrast, was adamant that Kantian liberalism, no less
than secular utilitarianism, Marxism and the other Enlightenment
ideologies, signally failed to ground the moral authority of the
Conclusion 239

contemporary political order. Hence, he looked back beyond the


Enlightenment, and argued that the foundational principles of
constitutional government in Europe were those disclosed in the
great natural law tradition of Aristotle and Aquinas. As a result, he
rejected the ideas of political morality that underlay the tradition of
natural right of Hobbes, Kant and their recent successors like Rawls,
Dworkin and Nozick. Much of the modern rhetoric of individual
human rights, he suggested in the article 'Some Professorial
Fallacies about Rights' (1972), 18 had in fact served to bring about
a 'devaluation of moral currency'. Indeed, in Finnis's account of the
matter, there was the suggestion that modern specifications of
universal human rights involved the appeal to a form of implicit
utilitarianism, in the sense that he took them to risk leaving even
authentically inviolable human rights, like the right of an innocent
person not to be intentionally or negligently killed, qualified by 'a
compendious exception clause' which provided that all human
rights remained subject to 'the exigencies of public order' .19
Finnis believed that the reconstruction of the natural law
standpoint in modern jurisprudence would permit the specifica-
tion of universally valid principles of political morality. This was so,
he insisted, because Thomist procedures in legal philosophy
assumed a coherent metaphysical context, situated in Christian
theism, for the determination of objective judgments about law
and morals, whose truth was not contingent on their relation to the
particular languages, customs and conventions of the actual human
societies in which they were asserted. Nonetheless, Finnis did not
regard the restatement of the principles of natural law as implying a
reversal of the secularization of moral and legal philosophy effected
during the Enlightenment. Indeed, he maintained that the Thornist
philosophy of natural law exercised a rational authority that was
independent of the dogmas of Christian theology. Even less did
Finnis hold that the practical realization of the principles of natural
law under contemporary political conditions necessitated the
restoration of an ecclesiastical predominance for organized Chris-
tianity. On the contrary, he defended the secular constitution of the
modern European state, even though, as Oakeshott's work under-
lined, the development of this constitutional order after the
sixteenth century had involved a slow but steady decline in the
political authority of the Church within society.
In their preoccupation with the culture of the Enlightenment,
Fuller, Oakeshott, Hayek, Dworkin and Finnis anticipated the
240 The Defence of Natural Law

concerns of a leading agenda in recent moral and political philoso-


phy - an agenda set by such philosoJ'hers as Alasdair Macintyre,
notably in his After Virtue (1981) 2 and Whose Justice? Which
Rationality? (1988),21 and Bernard Williams in his Ethics and the
Limits of Philosophy (1985). 22 Despite significant differences in the
matter of their moral, cultural and political allegiances, Macintyre
and Williams shared an underlying conviction that the philosophers
of the Enlightenment had failed in their attempt to establish human
morality upon purely rational foundations, and, further, that the
culture of the Enlightenment had led to a grave disordering of the
modern moral consciousness. Macintyre and Williams went on to
claim that the foundations of modem liberalism, the great political
ideology of the Enlightenment, were to be located not in universally
valid principles of philosophy, but in the historically grounded
practices and traditions of actual human societies.
The theorists considered in this volume all touched directly upon
the concerns of philosophers like Macintyre and Williams. For
example, the Oakeshott of Rationalism in Politics anticipated the
Williams of Ethics and the Limits of Philosophy in his determination
to diminish the claims of traditional philosophy to have established
a rationally compelling theoretical justification for human morality.
Again, Oakeshott, Hayek and Dworkin were united with Macintyre
in a common recognition that liberalism was to be understood as a
tradition of civility that remained deeply implicated in the historical
experience of particular societies. However, perhaps the most
significant implication of the work of Fuller, Oakeshott, Hayek,
Dworkin and Finnis in connection with the concerns of Macintyre
and Williams lay in its disclosure of a fundamental truth about the
contemporary critique of the Enlightenment: namely, that the
assault by modern moralists upon the Enlightenment and its
mentalities has not involved any abandonment of the political
morality of liberalism as a basis for the legal and constitutional
organization of modem society in the West.
Writing in the 1980s, Macintyre and Williams conveyed much the
same pessimism as had Oakeshott in the 1950s and 1960s about the
viability of liberalism as a commanding philosophy of man and
society. Despite this, the close of the 1980s witnessed what many
now interpret as the decisive ideological victory of the forces of
liberal capitalism over those of Marxism-Leninism. It is far from
being clear whether the overthrow of Marxism-Leninism, and the
triumph of liberal capitalism inferred from this, should be taken to
Conclusion 241

mark the end of history in the sense famously argued for by Francis
Fukuyama.23 That is to say, it is unclear why the overthrow of
Marxism-Leninism should be assumed to exclude the possibility of
liberal capitalism undergoing its own terminal crisis, or why liberal
capitalism should not itself come to be superseded by other
ideologies - nationalistic, religious, ecological or whatever. What
does seem clear is that the present situation is one in which the
essential character of liberalism as a philosophy of political moral-
ity, and the precise nature of its metaphysical foundations, are
matters left very much open to enquiry and definition. The task of
defining - or redefining - the essential meaning of the philosophy
of liberalism formed a central part of the basic enterprise of
understanding the nature of law and its moral justification in
modern society on which Fuller, Oakeshott, Hayek, Dworkin and
Finnis were all embarked. In connection with this endeavour to
restate the meaning of liberalism, it is necessary to mention, among
other things: the antidote to liberal universalism provided by the
determination of Oakeshott to explain principles of justice and
political morality in terms of their grounding in the traditional
practices of human societies; the no less powerful antidote to liberal
universalism provided by the determination of Hayek to relate the
conventions of free market capitalism directly to the structure of
English law; the attempt by Dworkin to appropriate for the liberal
philosophy of government the ideals of equality and social justice
earlier associated with orthodox socialist ideology; the pursuit by
Dworkin, and in some respects by Oakeshott, of a definition of
individual freedom which would remain consistent with a fully
communitarian view of human society; and, finally, the account
offered by Finnis of the common morality of Western civilization as
a corrective to the mentalities of secular liberalism celebrated by
Fukuyama. How these different understandings of liberalism are to
be reconciled stands out as perhaps the most urgent question in
contemporary ethics and political philosophy, and one to which, it
is intended, a subsequent volume will provide an answer.
Notes and References

Preface

1. A. P. d'Entreves, Natural lAw: An Introduction to Legal Philosophy, 2nd


ed., rev. (London: Hutchinson, 1970).
2. Ibid., p. 111.
3. Paul Franco, The Political Philosophy of Michael Oakeshott (New Haven,
Connecticut: Yale University Press, 1990).
4. For an excellent discussion of this tradition in legal philosophy, and
one which has greatly enriched my understanding of the subject, the
reader is referred to the study of the work of Blackstone provided by
David Lieberman in his The Province of Legislation Determined: Legal
Theory in Eighteenth-Century Britain (Cambridge University Press,
1989).
5. RobertS. Summers, Lon L. Fuller (London: Edward Arnold, 1984).

1 Introduction: Modem Legal Philosophy

1. Jeremy Bentham, An Introduction to the Principles of Morals and


Legislation, ed. J. H. Burns and H. L.A. Hart (London: Athlone
Press, 1970).
2. Sir William Blackstone, Commentaries on the lAws of England, ed.
Joseph Chitty, 4 vols. (London, 1826).
3. Jeremy Bentham, A Fragment on Government, in A Comment on the
Commentaries and A Fragment on Government, ed. J. H. Burns and
H. L.A. Hart (London: Athlone Press, 1977), pp. 39:>-551.
4. Thomas Hobbes, Leviathan, or the Matter, Forme and Power of a
Commonwealth Ecclesiasticall and Civil, ed. Michael Oakeshott (Ox-
ford: Basil Blackwell, 1946).
5. Plato, Republic, in The Collected Dialogues of Plato, trans. Lane Cooper et
al., ed. Edith Hamilton and Huntington Cairns, 2nd printing, with
corrections (Princeton, New Jersey: Princeton University Press, 1963),
pp. 575-844.
6. Aristotle, Nicomachean Ethics, in The Complete Works of Aristotle, trans.
J. L. Ackrill et al., ed. Jonathan Barnes, 2 vols. (Princeton, New Jersey:
Princeton University Press, 1984), Vol. 2, pp. 1729-1867.
7. Aristotle, Politics, in The Complete Works of Aristotle, Vol. 2, pp. 1986-
2129.
8. Charles-Louis de Secondat, baron de Montesquieu, The Spirit of the

242
Notes and References 243

Laws, trans. and ed. Anne M. Cohler, Basia Carolyn Miller and
Harold Samuel Stone (Cambridge University Press, 1989).
9. John Stuart Mill, On Liberty, in Collected Works of John Stuart Mill, Vol.
18: Essays on Politics and Society, ed. J. M. Robson (Toronto: University
of Toronto Press, 1977), pp. 213-310.
10. John Austin, The Province of Jurisprudence Determined, ed. H. L.A. Hart
(London: Weidenfeld and Nicolson, 1954).
11. Sir Henry Sumner Maine, Ancient Law: Its Connection with the Early
History of Society, and its Relation to Modern Ideas (London: John
Murray, 1861).
12. Max Weber, Economy and Society: An Outline of Interpretive Sociology,
trans. Ephraim Fischoff et al., ed. Guenther Roth and Claus Wittich, 2
vols., 2nd ed. (Berkeley and Los Angeles, California: University of
California Press, 1978).
13. Max Weber, On Law in Economy and Society, trans. Edward Shils and
Max Rheinstein, ed. Rheinstein, 20th Century Legal Philosophy
Series, Vol. 6 (Cambridge, Massachusetts: Harvard University
Press, 1954).
14. Hans Kelsen, Reine Rechtslehre: Einleitung in die rechtswissenschaftliche
Problematik (Vienna: Franz Deuticke, 1934).
15. Hans Kelsen, General Theory of Law and State, trans. Anders Wedberg,
20th Century Legal Philosophy Series, Vol. 1 (Cambridge, Massachu-
setts: Harvard University Press, 1945).
16. Hans Kelsen, What is Justice? Justice, Law, and Politics in the Mi"or
of Science (Berkeley and Los Angeles, California: University of
California Press, 1957).
17. Hans Kelsen, 'Absolutism and Relativism in Philosophy and Politics',
American Political Science Review, 42 (1948), 906-14; rpt. in What is
Justice?, pp. 198-208.
18. Hans Kelsen, 'Foundations of Democracy', Ethics, Vol. 66, No.1, Part
2 (1955), 1-101.
19. H. L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961).
20. H. L.A. Hart, Essays on Bentham: Studies in Jurisprudence and Political
Theory (Oxford: Clarendon Press, 1982).
21. H. L.A. Hart, 'Are There Any Natural Rights?', Philosophical Review,
64 (1955), 175-91.
22. H. L.A. Hart, Law, Liberty, and Morality (Oxford University Press,
1963).
23. H. L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of
Law (Oxford: Clarendon Press, 1968).
24. H. L.A. Hart, 'Positivism and the Separation of Law and Morals',
Haroard Law Review, 71 (1958), 593-629; rpt. in his Essays in Juris-
prudence and Philosophy (Oxford: Clarendon Press, 1983), pp. 49-87.
25. H. L.A. Hart, 'Utilitarianism and Natural Rights', Tulane Law Review,
53 (1979), 663-80; rpt. in Essays in Jurisprudence and Philosophy, pp.
181-97.
26. H. L.A. Hart, 'Between Utility and Rights', Columbia Law Review,
79 (1979), 828-46; rpt. in Essays in Jurisprudence and Philosophy, pp.
198-222.
244 Notes and References

2 Lon L. Fuller and the Defen(e of Natural Law

1. Lon L. Fuller, The lAw in Quest of Itself (Evanston, Illinois: North-


western University Press, 1940).
2. Lon L. Fuller, The Morality of lAw, 2nd edition with a Reply to Critics
(New Haven, Connecticut: Yale University Press, 1969).
3. Lon L. Fuller, The Principles of Social Order (posthumous), ed. Kenneth
I. Winston (Durham, North Carolina: Duke University Press, 1981).
4. Fuller, The lAw in Quest of Itself, p. 5.
5. David Hume, A Treatise of Humlln Nature, ed. L.A. Selby-Bigge, 2nd
edition with text revised and variant readings by P. H. Nidditch
(Oxford: Clarendon Press, 1978).
6. A.J. Ayer, lAnguage, Truth and Logic, 2nd ed., rev. (London: Victor
Gollancz, 1946).
7. Charles L. Stevenson, Ethics and lAnguage (New Haven, Connecticut:
Yale University Press, 1944).
8. Charles L. Stevenson, Facts and Values (New Haven, Connecticut: Yale
University Press, 1963).
9. R.M. Hare, The Language of Morals (Oxford: Clarendon Press, 1952).
10. R. M. Hare, Freedom and Reason (Oxford: Clarendon Press, 1963).
11. R. M. Hare, Moral Thinking: Its Levels, Method, and Point (Oxford:
Clarendon Press, 1981).
12. John Locke, An Essay concerning Humlln Understanding, ed. P. H.
Nidditch (Oxford: Clarendon Press, 1975).
13. Immanuel Kant, Critique of Pure Reason, trans. Norman Kemp Smith
(London: Macmillan, 1929).
14. Immanuel Kant, The Critique of Judgement, trans. James Creed Mer-
edith (Oxford: Clarendon Press, 1952).
15. Immanuel Kant, Foundations of the Metaphysics of Morals, trans. Lewis
White Beck, 2nd ed., rev. Ondianapolis and New York: Bobbs-Merrill,
1959).
16. Immanuel Kant, Critique of Practical Reason, trans. Lewis White Beck
(Indianapolis, Indiana: Bobbs-Merrill, 1956).
17. Fuller, The Law in Quest of Itself, p. 91.
18. Ibid., p. 22.
19. Ibid., p. 28.
20. Lon L. Fuller, 'Reason and Fiat in Case Law', Harvard Law Review, 59
(1946), 376-95.
21. Ibid., p. 391.
22. Lon L. Fuller, Anatomy of the Law (New York: Praeger, 1968).
23. Lon L. Fuller, The Problems of Jurisprudence, temporary ed. (Mineola,
New York: Foundation Press, 1949).
24. Ibid., p. 706.
25. Lon L. Fuller, 'lbe Forms and Limits of Adjudication', Harvard Law
Review, 92 (1978), 353-409; rpt. in abridged form in The Principles of
Social Order, pp. 86-124.
26. Fuller, The Principles of Social Order, p. 92.
27. Lon L. Fuller, 'lbe Adversary System', in Talks on Amerialn Law, ed.
Harold J. Berman (New York: Vintage Books, 1961), pp. 30-43.
Notes and References 245

28. Lon L. Fuller, 'Collective Bargaining and the Arbitrator', Wisconsin


Ulw Review, (1963), 3--46.
29. Lon L. Fuller, 'Mediation - Its Forms and Functions', Southern
OllifornilllAw Review, 44 (1971), 305-38; rpt. in The Principles of Socilll
Order, pp. 125-57.
30. Lon L. Fuller, 'American Legal Philosophy at Mid-Century', Journal of
Legal Education, 6 (1954), 457-85.
31. Ibid., pp. 477-8.
32. Lon L. Fuller, 'Means and Ends', in The Principles of Socilll Order, pp.
47-64.
33. Fuller, The Principles of Socilll Order, pp. 54-8.
34. Jean-Jacques Rousseau, The Socilll Contract, trans. Maurice Cranston
(Harmondsworth: Penguin, 1968).
35. G. W. F. Hegel, Phenomenology of Spirit, trans. A. V. Miller (Oxford:
Clarendon Press, 1977).
36. G. W. F. Hegel, Philosophy of Right, trans. T. M. Knox (Oxford: Clar-
endon Press, 1942).
37. Lon L. Fuller, 'Freedom- A Suggested Analysis', Harvard lAw Review,
68 (1955), 1305-25.
38. Ibid., p. 1312.
39. Isaiah Berlin, Two Concepts of Liberty (Oxford: Clarendon Press, 1958);
rpt. as 'Two Concepts of Uberty', in his Four Essays on Liberty (Oxford
University Press, 1969), pp. llS-72.
40. J. L. Talmon, The Origins ofTotalitarilln Democracy (London: Seeker and
Warburg, 1952).
41. J. L. Talmon, Political Messillnism: The Romantic Phase (London: Seeker
and Warburg, 1960).
42. Sir Karl Popper, The Open Society and its Enemies, 2 vols., 5th ed., rev.
(London: Routledge and Kegan Paul, 1966).
43. Fuller, The Principles of Socilll Order, pp. 47-9.
44. Fuller, The Morality of lAw, p. 98.
45. Ibid., p. 110.
46. Ibid., pp. 113-15.
47. Ibid., p. 192.
48. Ibid., p. 210.
49. Ibid., pp. 209-14.
50. H. L. A. Hart, 'Lon L. Fuller: The Morality of lAw', Harvard lAw Review,
78 (1965), 1281-96; rpt. in his Essays in Jurisprudence and Philosophy,
pp. 343-64.
51. Hart, Essays in Jurisprudence and Philosophy, pp. 350-3.
52. Fuller, The Morality of lAw, p. 173.
53. Ibid., p. 205.
54. John Finnis, Natural lAw and Natural Rights (Oxford: Oarendon Press,
1980).
55. Ibid., pp. 272-4.
56. John Rawls, A Theory of Justice (Cambridge, Massachusetts: Harvard
University Press, 1971; Oxford: Clarendon Press, 1972).
57. Ibid., p. 58.
58. Ibid., p. 302.
246 Notes and References

59. Ibid., p. 235.


60. Ibid., p. 302.
61. Ibid., p. 7.
62. Lon L. Fuller, 'American Legal Realism', University of PennsylvaniJI
Law Review, 82 (1934), 429-62.
63. Lon L. Fuller (with William R. Perdue, Jr.), 'The Reliance Interest in
Contract Damages', Yale Law Journal, 46 (1936-7), 52-96, 373-420.
64. Lon L. Fuller, 'Williston on Contracts', North Olrolina lAw Review, 18
(1939), 1-15.
65. Lon L. Fuller, 'Consideratio n and Form', Columbia lAw Review, 41
(1941), 799-824.
66. Lon L. Fuller, 'Human Interaction and the Law', American Journal of
Jurisprudence, 14 (1969), 1-36.
67. Fuller, Anatomy of the lAw, p. 66.
68. Ibid., p. 108.
69. Ibid., p. 103.
70. Ibid., p. 94.
71. Ibid., p. 45.
72. Ibid., p. 116.
73. Fuller, 'American legal Philosophy at Mid-Century ', p. 473.
74. Ibid., p. 480.
75. Fuller, The lAw in Quest of Itself, p. 122.
76. Fuller, The Problems of Jurisprudence, p. 713.
77. Ibid., p. 727.
78. Ibid., p. 704.
79. Lon L. Fuller, 'Pashukanis and Vyshinsky: A Study in the Develop-
ment of Marxian Legal Theory', Michigan lAw Review, 47 (1949),
1157-66.
80. Lon L. Fuller, 'Irrigation and Tyranny', Stanford lAw Review, 17 (1965),
1021-42.
81. Fuller, 'Freedom- A Suggested Analysis', p. 1319.
82. Lon L. Fuller, Introduction, The Jurisprudence of Interests, trans. and ed.
M. Magdalena Schoch, 20th Century Legal Philosophy Series, Vol. 2
(Cambridge, Massachusett s: Harvard University Press, 1948), pp.
xvii-xxv.
83. Ibid., p. xvii.
84. Fuller, 'Irrigation and Tyranny', p. 1033.
85. Lon L. Fuller, 'Jurisprudenc e', EncyclopaediJI Britannica, Vol. 13, 14th
edition (1965 printing), pp. 149-52.
86. Ibid., p. 150.
87. Lon L. Fuller, 'Positivism and Fidelity to Law - A Reply to Professor
Hart', Haruard lAw Review, 71 (1958), 63(}-72.
88. Ibid., p. 656.
89. Lon L. Fuller, 'Two Principles of Human Association', in Voluntary
Associations, ed. J. Roland Pennock and John Chapman, Nomos, Vol.
11 (New York: Atherton Press, 1969), pp. 3-21; rpt. in The Principles of
Social Order, pp. 67-85.
Notes and References 247

3 Michael Oakeshott and F. A. Hayek: Natural Law and the Philosophy


of Liberal Conservatism

1. Michael Oakeshott, On Humlln Conduct (Oxford: Clarendon Press,


1975).
2. Michael Oakeshott, Hobbes on Civil Association (Oxford: Basil Black-
well, 1975).
3. Michael Oakeshott, On History and other Essays (Oxford: Basil Black-
well, 1983).
4. Michael Oakeshott, Rationalism in Politics and other Essays (London:
Methuen, 1962).
5. Michael Oakeshott, Experience and its Modes (Cambridge University
Press, 1933).
6. Michael Oakeshott, 'The Authority of the State', Modern Churchmlln,
19 (1929-30), 313-27.
7. T. H. Green, Prolegomena to Ethics, ed. A. C. Bradley (Oxford: Clar-
endon Press, 1883).
8. T. H. Green, Lectures on the Principles of Political Obligation, in Works of
Thomas Hill Green, ed. R. L. Nettleship, 3 vols. (London: Longmans,
Green and Company, 1885-8), Vol. 2, pp. 335-553.
9. F. H. Bradley, Ethical Studies, 2nd ed., rev. (Oxford: Clarendon Press,
1927).
10. Oakeshott, 'The Authority of the State', p. 323.
11. Ibid., p. 327.
12. Michael Oakeshott, Introduction, in his edition of Hobbes's Leviathan
(Oxford: Basil Blackwell, 1946), pp. v-lxvii; rev. and rpt. as 1ntro-
duction to Leviathan', in Hobbes on Civil Association, pp. 1-74.
13. Michael Oakeshott, 'The Moral Life in the Writings of Thomas
Hobbes' (1960), in Rationalism in Politics, pp. 248-300.
14. Oakeshott, Hobbes on Civil Association, pp. 56-7.
15. Ibid., p. 31.
16. Ibid., p. 28.
17. Oakeshott, Rationalism in Politics, p. 268.
18. Ibid., p. 272.
19. Oakeshott, Hobbes on Civil Association, pp. 62-3.
20. Michael Oakeshott, 'The Vocabulary of a Modem European State',
Political Studies, 23 (1975), 319-41, 409-14.
21. Michael Oakeshott, 'Talking Politics', National Review, 27 (1975), 1345-
7, 1423-8.
22. Michael Oakeshott, 'The Rule of Law', in On History, pp. 119-64.
23. Oakeshott, On Humlln Conduct, p. 153n.
24. Oakeshott, On History, p. 140.
25. Ibid., p. 150.
26. Oakeshott, On Humlln Conduct, p. 115.
27. Ibid., p. 158.
28. Ibid., p. 317n.
248 Notes and References

29. Ibid., pp. 136-7.


30. Oakeshott, On History, p. 144.
31. Ibid., p. 146.
32. Ibid., pp. 138-9.
33. Oakeshott, On Human Conduct, pp. 228-9.
34. Ibid., pp. 201-2.
35. Ibid., pp. 203-4.
36. Ibid., pp. 290-1.
37. Rene Descartes, Discourse on the Method of Rightly Conducting One's
Reason and Seeking the Truth in the Sciences, in The Philosophical Writings
of Descartes, trans. John Cottingham, Robert Stoothoff and Dugald
Murdoch, 2 vols. (Cambridge University Press, 1984-5), Vol. 1, pp.
109-51.
38. Rene Descartes, Meditations on First Philosophy, in The Philosophical
Writings of Descartes, Vol. 2, pp. 1-62.
39. Rene Descartes, Principles of Philosophy, in The Philosophical Writings of
Descartes, Vol. 1, pp. 177-291.
40. Bernard Williams, Descartes: The Project of Pure Enquiry (Harmonds-
worth: Penguin, 1978).
41. Michael Oakeshott, 'Rationalism in Politics', Cambridge Journal, 1
(1947-8), 81-98, 14!)-57; rpt. in Rationalism in Politics, pp. 1-36.
42. Michael Oakeshott, 'Rational Conduct', Cambridge Journal, 4 (1950-1),
3-27; rpt. in Rationalism in Politics, pp. 80-110.
43. Michael Oakeshott, 'The Tower of Babel', Cambridge Journal, 2 (1948-
9), 67-83; rpt. in Rationalism in Politics, pp. 59-79.
44. Oakeshott, Rationalism in Politics, p. 4.
45. Michael Oakeshott, 'Scientific Politics', Cambridge Journal, 1 (1947-8),
347-58.
46. Michael Oakeshott, 'Political Laws and C:-lptive Audiences', in
Talking to Eastern Europe, ed. G. R Urban (London: Eyre and Spot-
tiswoode, 1964), pp. 291-301.
47. Michael Oakeshott, Political Education (Cambridge: Bowes and Bowes,
1951); reprinted with additional explanatory notes as 'Political
Education', in Rationalism in Politics, pp. 111-36.
48. Oakeshott, Rationalism in Politics, p. 129.
49. Rawls, A Theory of Justice, p. 302.
50. Ibid., pp. 272-3.
51. Ibid., p. 75.
52. Oakeshott, On Human Conduct, p. 153n.
53. Oakeshott, On History, p. 156n.
54. Ibid., p. 140.
55. Rawls, A Theory of Justice, p. 221.
56. Ibid., p. 244.
57. Oakeshott, Hobbes on Civil Associlltion, p. 65.
58. Oakeshott, On Human Conduct, p. 245n.
59. Rawls, A Theory of Justice, p. 137.
60. Ibid., p. 505.
61. Ibid., p. 72.
Notes and References 249
62. Immanuel Kant, The Metaphysiall Elements of Justice, Part 1 of The
Metaphysics of Morals, trans. John Ladd Ondianapolis and New York:
Bobbs-Merrill, 1965).
63. Michael J. Sandel, Liberalism and the Limits of Justice (Cambridge
University Press, 1982).
64. Rawls, A Theory of Justice, p. 22.
65. Ibid., p. 30.
66. Ibid., p. 586.
67. Robert Nozick, An~~rchy, State, and Utopill (Oxford: Basil Blackwell,
1974).
68. John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge
University Press, 1960).
69. Nozick, An~~rchy, State, and Utopill, p. 26.
70. Ibid., pp. 30-3.
71. Ibid., pp. 167-74.
72. Ibid., p. 23.
73. Oakeshott, 'Talking Politics', p. 1424.
74. Nozick, An~~rchy, State, and Utopill, p. ix.
75. Ibid., p. 50.
76. Michael Oakeshott, 'The Concept of a Philosophical Jurisprudence',
Politica, 3 (1938), 203-22, 345--60.
77. Ibid., pp. 350-1.
78. Ibid., pp. 21~19.
79. Oakeshott, On History, p. 129.
80. Oakeshott, On Human Conduct, pp. 155--6.
81. Oakeshott, On History, p. 159.
82. Ibid., p. 136.
83. Ibid., pp. 161-2.
84. Oakeshott, On Human Conduct, p. 181.
85. F. A. Hayek, The Road to Serfdom (London: George Routledge and
Sons, 1944).
86. F. A. Hayek, The Constitution of Liberty (London: Routledge and Kegan
Paul, 1960).
87. F. A. Hayek, Law, Legislation and Liberty: A New Statement of the Liberal
Principles of Justice and Political Economy (London: Routledge and
Kegan Paul, 1982).
88. F. A. Hayek, Law, Legislation and Liberty: A New Statement of the Liberal
Principles of Justice and Politiall Economy, Vol. 1: Rules and Order
(London: Routledge and Kegan Paul, 1973).
89. F. A. Hayek, Law, Legislation and Liberty: A New Statement of the Liberal
Principles of Justice and Political Economy, Vol. 2: The Mirage of Socilll
Justice (London: Routledge and Kegan Paul, 1976).
90. F. A. Hayek, Law, Legislation and Liberty: A New Statement of the Liberal
Principles of Justice and Political Economy, Vol. 3: The Political Order of a
Free People (London: Routledge and Kegan Paul, 1979).
91. Hayek, Law, Legislation and Liberty, Vol. 1, p. 46.
92. Ibid., Vol. 1, p. 84.
93. Ibid., Vol. 1, p. 116.
250 Notes and References

94. Ibid., Vol. 1, p. 122.


95. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of
Nations, ed. R H. Campbell, A. S. Skinner and W. B. Todd, Glasgow
edition of the Works and Correspondence of Adam Smith, Vol. 2 (Oxford:
Clarendon Press, 1976).
96. Hayek, Law, Legislation and Liberty, Vol. 2, p. 108.
97. Ibid., Vol. 2, p. 81.
98. Michael Oakeshott, 'Contemporary British Politics', Cambridge
Journal, 1 (1947--8), 474-90.
99. Michael Oakeshott, 'The Political Economy of Freedom', Cambridge
Journal, 2 (1948-9), 212-29; rpt. in Rationalism in Politics, pp. 37-58.
100. Oakeshott, Rationalism in Politics, p. 40.
101. Michael Oakeshott, 'On Being Conservative' (1956), in Rationalism in
Politics, pp. 168-96.
102. Ibid., p. 187.
103. Oakeshott, Rationalism in Politics, p. 21.
104. Oakeshott, On Human Conduct, pp. 311-12.
105. Ibid., p. 318.
106. Oakeshott, 'Talking Politics', pp. 1426-7.

4 Ronald Dworkin: Legal Philosophy and the Liberal Theory of Justice

1. Ronald Dworkin, Taking Rights Seriously, 2nd edition with a Reply to


Critics (London: Duckworth, 1978).
2. Ronald Dworkin, A Matter of Principle (Cambridge, Massachusetts:
Harvard University Press, 1985).
3. Ronald Dworkin, Law's Empire (Cambridge, Massachusetts: Harvard
University Press, 1986).
4. Ronald Dworkin, 'The Model of Rules', University of Chicago Law
Review, 35 (1967), 14-46; rev. and rpt. in Taking Rights Seriously, pp.
14-45.
5. Ronald Dworkin, 'Hard Cases', Harvard Law Review, 88 (1975), 1057-
1109; rev. and rpt. in Taking Rights Seriously, pp. 81-130.
6. Dworkin, Taking Rights Seriously, p. 40.
7. Ronald Dworkin, 'The Jurisprudence of Richard Nixon', New York
Review of Books, 18 (4 May 1972), 27-35; rev. and rpt. as 'Constitutional
Cases', in Taking Rights Seriously, pp. 131-49.
8. Dworkin, Law's Empire, pp. 87-90.
9. Ibid., pp. 139-40.
10. Ibid., p. 151.
11. Ibid., p. 160.
12. Ibid., p. 225.
13. Ibid., p. 348.
14. Ibid., p. 378.
15. Ibid., p. 398.
16. Ibid., p. 199.
17. Ronald Dworkin, 'Liberalism', in Public and Private Morality, ed.
Stuart Hampshire (Cambridge University Press, 1978), pp. 113-43.
18. Ibid., p. 127.
Notes and References 251

19. Ibid., p. 143.


20. Ronald Dworkin, 'Did Mill Go Too Far?', New York Review of Books, 21
(31 October 1974), 21-3; rev. and rpt. as 'Liberty and Liberalism', in
Taking Rights Seriously, pp. 259-65.
21. Ronald Dworkin, 'Lord Devlin and the Enforcement of Morals', Yale
Law Journal, 75 (1965-6), 986-1005; rev. and rpt. as 'Liberty and
Moralism', in Taking Rights Seriously, pp. 240-58.
22. Ronald Dworkin, 1s There a Right to Pornography?', Orford Journal of
Legal Studies, 1 (Summer 1981), 177-212; rev. and rpt. as 'Do We Have
a Right to Pornography?', in A Matter of Principle, pp. 335-72.
23. Ronald Dworkin, 'Can a Liberal State Support Art?', in A Matter of
Principle, pp. 221-33.
24. Ronald Dworkin, 'The Original Position', University of Chicago Law
Review, 40 (1973), 500-33; rev. and rpt. as 1ustice and Rights', in
Taking Rights Seriously, pp. 150-83.
25. Dworkin, Taking Rights Seriously, p. 182.
26. Ronald Dworkin, 'What Rights Do We Have?', in Taking Rights
Seriously, pp. 266-78.
27. Dworkin, Taking Rights Seriously, pp. 262-3.
28. Ronald Dworkin, 'DeFunis versus Odegaard and the University of
Washington', New York Review of Books, 23 (5 February 1976), 29-33;
rev. and rpt. as 'Reverse Discrimination', in Taking Rights Seriously,
pp.~39.
29. Ronald Dworkin, 'Why Bakke Has No Case', New York Review of
Books, 24 (10 November 1977), 11-15; rev. and rpt. as 'Bakke's Case:
Are Quotas Unfair?', in A Matter of Principle, pp. 293-303. 'The Bakke
Decision: Did It Decide Anything?', New York Review of Books, 25 (17
August 1978), 2(}..5; rev. and rpt. as 'What Did Bakke Really Decide?',
in A Matter of Principle, pp. 304-15.
30. Dworkin, Taking Rights Seriously, p. 239.
31. Ronald Dworkin, 'What is Equality? Part 1: Equality of Welfare',
Philosophy and Public Affairs, 10 (Summer 1981), 185-246; 'What is
Equality? Part 2: Equality of Resources', Philosophy and Public Affairs,
10 (Fall 1981), 283-345.
32. Dworkin, Law's Empire, p. 297.
33. Ronald Dworkin, 'Why Liberals Should Believe in Equality', New
York Review of Books, 30 (3 February 1983), 32-5; rev. and rpt. as 'Why
Liberals Should Care about Equality', in A Matter of Principle, pp. 205-
13.
34. Dworkin, A Matter of Principle, p. 210
35. Dworkin in Hampshire (ed.), Public and Private Morality, p. 122.
36. Ronald Dworkin, 'The Rights of Myron Farber', New York Review of
Books, 25 (26 October 1978), 34-6; rev. and rpt. as 'The Farber Case:
Reporters and Informers', in A Matter of Principle, pp. 373-80. 1s
the Press Losing the FU"St Amendment?', New York Review of Books, 27
(4 December 1980), 49-57; rev. and rpt. in A Matter of Principle, pp.
381-97.
37. Dworkin, Law's Empire, p. 404.
38. Dworkin, Taking Rights Seriously, p. 172.
252 Notes and References

39. Oakeshott, 'The Moral Life in the Writings of Thomas Hobbes', in


Rationalism in Politics, p. 269.
40. Ronald Dworkin, 'Can Rights be Controversial?', in Taking Rights
Seriously, pp. 279-90. 'No Right Answer?', New York University Law
Review, 53 (1978), 1-32; rev. and rpt. as 1s There Really No Right
Answer in Hard Cases?', in A Matter of Principle, pp. 119-45.
41. Dworkin, Taking Rights Seriously, pp. 279--80.
42. Ibid., p. 279.
43. Dworkin, Law's Empire, p. 213.
44. Ronald Dworkin, 'On Not Prosecuting Civil Disobedience', New York
Review of Books, 10 (6 June 1968), 14-21; rev. and rpt. as 'Civil
Disobedience', in Taking Rights Seriously, pp. 206-22.
45. Ronald Dworkin, 'Taking Rights Seriously', New York Review of Books,
15 (17 December 1970), 23-31; rev. and rpt. in Taking Rights Seriously,
pp. 184-205.
46. Dworkin, Taking Rights Seriously, p. 190.
47. Ibid., p. 205.
48. Dworkin, Law's Empire, p. 216.
49. Ronald Dworkin, 'To Each His Own', New York Review of Books, 30 (14
April 1983), 4-6; rev. and rpt. as 'What Justice Isn't', in A Matter of
Principle, pp. 214-20.
50. Ronald Dworkin, 'The High Cost of Virtue', New York Review of Books,
32 (24 October 1985), 37-9.
51. Ibid., p. 37.
52 Dworkin in Hampshire (eel.), Public and Private Morality, p. 117.
53. Ibid., pp. 114-16.
54. Ronald Dworkin, in 'Some Views of Mrs Thatcher's Victory', New
York Review of Books, 26 (28 June 1979), 26-33.
55. Ibid., p. 30.
56. Dworkin, A Matter of Principle, p. 212.
57. Ronald Dworkin, 'Political Judges and the Rule of Law', Proceedings of
the British Academy, 64 (1978), 25~7.
58. Richard A. Posner, Economic Analysis of Law, 2nd ed., rev. (Boston and
Toronto: Little, Brown, 1977).
59. Ronald Dworkin, in 1s Wealth a Value?', Journal of Legal Studies, 9
(1980), 191-226; rev. and rpt. in A Matter of Principle, pp. 237--66.
60. Ronald Dworkin, 'Why Efficiency?', Hofstra Law Review, 8 (1980),
563-90; rev. and rpt. in A Matter of Principle, pp. 267-89.
61. Dworkin, A Matter of Principle, p. 243.
62. Ibid., p. 266.
63. Ronald Dworkin, 'Reagan's Justice', New York Review of Books, 31 (8
November 1984), 27-31.
64. Ronald Dworkin, 'The Bork Nomination', New York Review of Books,
34 (13 August 1987), 3-10.
65. Ibid., p. 10.
66. Ronald Dworkin, 'How to Read the Civil Rights Act', New York
Review of Books, 26 (20 December 1979), 37-42; rev. and rpt. in A
Matter of Principle, pp. 316-31.
Notes and References 253

67. Ronald Dworkin, 'From Bork to Kennedy', New York Review of Books,
34 (17 December 1987), 36-42.
68. Ibid., p. 42.
69. Dworkin, 'Reagan's Justice', p. 27.
70. Dworkin in Hampshire (ed.), Public and Private Morality, p. 127.

S John Finnis: Thomism and the Philosophy of Natural Law

1. John Finnis, Fundamentals of Ethics (Oxford: Clarendon Press, 1983).


2. John Finnis, Joseph M. Boyle, Jr. and Germain Grisez, Nuclear
Deterrence, Morality and Realism (Oxford: Clarendon Press, 1987).
3. John Finnis, 'Blackstone's Theoretical Intentions', Natural Law Forum,
12 (1967), 163--83.
4. Ibid., p. 181.
5. John Finnis, 'Reason, Authority and Friendship in Law and Morals',
in Jowett Papers 1968-1969, ed. B. Y. Khanbai, R. S. Katz and R. A.
Pineau (Oxford: Basil Blackwell, 1970), pp. 101-24.
6. John Fmnis, 'Scepticism, Self-Refutation, and the Good of Truth', in
Law, Morality and Society: Essays in Honour of H. L.A. Hart, ed. P.M. S.
Hacker and J. Raz (Oxford: Clarendon Press, 1977), pp. 247-67.
7. Finnis, Natural Law and Natural Rights, p. 14.
8. Ibid., p. 18.
9. Ibid., pp. 89-90.
10. Ibid., p. 97.
11. Ibid., p. 126.
12. Ibid., p. 36.
13. Ibid., p. 268.
14. Ibid., p. 308.
15. Ibid., p. 186.
16. Ibid., p. 166.
17. Ibid., p. 172.
18. Ibid., p. 225.
19. Ibid., pp. 206-9.
20. Finnis, Boyle and Grisez, Nuclear Deterrence, Morality and Realism, pp.
6~9.
21. Ibid., p. 283.
22. Ibid., pp. 286-7.
23. Ibid., p. 357.
24. Ibid., pp. 379-80.
25. Finnis, Natural Law and Natural Rights, pp. 1~50.
26. Finnis, Fundamentals of Ethics, p. 150.
27. John Finnis, 'Natural Law and Unnatural Acts', Heythrop Journal, 11
(1970), 365--87.
28. John Fmnis, The Rights and Wrongs of Abortion: A Reply to Judith
Thomson', Philosophy and Public Affairs, 2 (Winter 1973), 117-45.
29. John Finnis, The Restoration of Retribution', Analysis, 32 (1972),
131-5.
254 Notes and References

30. John Finnis, 'Reason and Passion: The Constitutional Dialectic of Free
Speech and Obscenity', University of Pennsylvania Law Review, 116
(1%7), 222-43.

6 Conclusion

1. Hayek, The Road to Serfdom, p. 60.


2. Ronald Dworkin, 'The Great Abortion Case', New York Review of
Books, 36 (29 June 1989), 49-53.
3. Ronald Dworkin, 'The Future of Abortion', New York Review of Books,
36 (28 September 1989), 47-51.
4. Dworkin, 'The Great Abortion Case', p. 50.
5. Finnis, Boyle and Grisez, Nuclear Deterrence, Morality and Realism,
p. 357.
6. Fuller, The Morality of Law, p. 233.
7. Oakeshott, On History, p. 163.
8. Ronald Dworkin, 'Civil Disobedience and Nuclear Protest' (1983), in
Dworkin, A Matter of Principle, pp. 104-16.
9. Ibid., p. 113.
10. Fuller, The Morality of Law, p. 102.
11. Michael Oakeshott, 'John Locke', Cambridge Review, 54 (1932-3), 72-3.
12. Michael Oakeshott, 'The New Bentham', Scrutiny, 1 (1932-3), 114-31.
13. Oakeshott, 'John Locke', p. 73.
14. Michael Oakeshott, 'Thomas Hobbes', Scrutiny, 4 (1935-6), 263-77.
15. Oakeshott, Hobbes on Civil Association, p. 63.
16. Michael Oakeshott, 'Die Massen in der repriisentativen Demokratie',
in Masse und Demokratie, ed. A. Hunold (Erlenbach-Zurich und
Stuttgart: Rentsch, 1957), pp. 189-214; trans. and rpt. as 'The Masses
in Representative Democracy', in Freedom and Serfdom: An Anthology of
Western Thought, ed. A. Hunold (Dordrecht, Holland: Reidel, 1961),
pp. 151-70.
17. Ronald Dworkin, A Bill of Rights for Britain, Counterblasts, No. 16
(London: Chatto and Windus, 1990).
18. John Finnis, 'Some Professorial Fallacies about Rights', Adelaide Law
Review, 4 (1972), 377-88.
19. Ibid., p. 388.
20. Alasdair Macintyre, After Virtue: A Study in Moral Theory (London:
Duckworth, 1981).
21. Alasdair Macintyre, Whose Justice? Which Rationality? (London: Duck-
worth, 1988).
22. Bernard Williams, Ethics and the Limits of Philosophy (London: Fonta-
na, 1985).
23. Francis Fukuyama, 'The End of History?', National Interest, 16
(Summer 1989), ~18.
Bibliography of the Works
of Fuller, Oakeshott, Hayek,
Dworkin and Finnis
This bibliography comprises a list of those works by the above authors to
which reference has been made in the text.

LON L. FULLER

Books

The lAw in Quest of Itself (Evanston, Illinois: Northwestern University Press,


1940).
The Problems of Jurisprudence, temporary edition (Mineola, New York:
Foundation Press, 1949).
The Morality of lAw (1964), 2nd edition with a Reply to Critics (New Haven,
Connecticut: Yale University Press, 1969).
Anatomy of the lAw (New York: Praeger, 1968).
The Principles of Social Order (posthumous), ed. Kenneth I. Winston
(Durham, North Carolina: Duke University Press, 1981).

Artides

'American Legal Realism', University of Pennsylvania lAw Review, 82 (1934),


42~2.
'The Reliance Interest in Contract Damages' (with William R. Perdue, Jr.),
Yale lAw Journal, 46 (1936-7), 52-96, 373-420.
'Williston on Contracts', North Carolina lAw Review, 18 (1939), 1-15.
'Consideration and Form', Columbia Law Review, 41 (1941), 799--824.
'Reason and Fiat in Case Law', Harvard lAw Review, 59 (1946), 376-95.
Introduction, The Jurisprudence of Interests, trans. and ed. M. Magdalena
Schoch, 20th Century Legal Philosophy Series, Vol. 2 (Cambridge,
Massachusetts: Harvard University Press, 1948), pp. xvii-xxv.
'Pashukanis and Vyshinsky: A Study in the Development of Marxian Legal
Theory', Michigan lAw Review, 47 (1949), 1157-66.
'American Legal Philosophy at Mid-Century', Journal of Legal Education, 6
(1954), 457-85.
'Freedom- A Suggested Analysis', Harvard lAw Review, 68 (1955), 1305-25.
'Positivism and Fidelity to Law- A Reply to Professor Hart', Harvard lAw
Review, 71 (1958), 630-72.
255
256 Bibliography

'The Adversary System', in Talks on American Law, ed. Harold J. Berman


(New York: Vintage Books, 1961), pp. 30-43.
'Collective Bargaining and the Arbitrator', Wisconsin Law Review, (1963),
3-46.
'Irrigation and Tyranny', Stanford Law Review, 17 (1965), 1021--42.
'Jurisprudence', Encyclopaedia Britannica, Vol. 13, 14th edition (1965 Print-
ing), pp. 149-52.
'Two Principles of Human Association', in Voluntary Associations, ed. J.
Roland Pennock and John Chapman, Nomos, Vol. 11 (New York: Atherton
Press, 1969), pp. 3-21; rpt. in The Principles of Social Order, pp. 67-85.
'Human Interaction and the Law', American Journal of Jurisprudence, 14
(1969), 1-36.
'Mediation- Its Forms and Functions', Southern California Law Review, 44
(1971), 305-38; rpt. in The Principles of Social Order, pp. 125-57.
'The Forms and Limits of Adjudication', Harvard Law Review, 92 (1978),
353-409; rpt. in abridged form in The Principles of Social Order, pp. 86-124.

MICHAEL OAKESHO'IT

Books

Experience and its Modes (Cambridge University Press, 1933).


Rationalism in Politics and other Essays (London: Methuen, 1962).
On Human Conduct (OXford: Clarendon Press, 1975).
Hobbes on Civil Association (OXford: Basil Blackwell, 1975).
On History and other Essays (Oxford: Basil Blackwell, 1983).
Articles

'The Authority of the State', Modern Churchman, 19 (1929-30), 313-27.


'John Locke', Cambridge Review, 54 (1932-3), 72-3.
The New Bentham', Scrutiny, 1 (1932-3), 114-31.
Thomas Hobbes', Scrutiny, 4 (1935-6), 263-77.
The Concept of a Philosophical Jurisprudence', Politica, 3 (1938), 203-22,
345-60.
Introduction, in his edition of Hobbes's Leviatlum (Oxford: Basil Blackwell,
1946), pp. v-lxvii; rev. and rpt. as 'Introduction to Leviathan', in Hobbes
on Civil Association, pp. 1-74.
'Rationalism in Politics', Cambridge Journal, 1 (1947-8), 81-98, 145-57; rpt. in
Rationalism in Politics, pp. 1-36.
'Scientific Politics', Cambridge Journal, 1 (1947-8), 347-58.
'Contemporary British Politics', Cambridge Journal, 1 (1947-8), 474-90.
The Tower of Babel', Cambridge Journal, 2 (1948-9), 67-83; rpt. in Rational-
ism in Politics, pp. 59-79.
The Political Economy of Freedom', Cambridge Journal, 2 (1948-9), 212-29;
rpt. in Rationalism in Politics, pp. 37-58.
'Rational Conduct', Cambridge Journal, 4 (1950-1), 3-27; rpt. in Rationalism
in Politics, pp. 80-110.
Bibliography 257

Political Education (Cambridge: Bowes and Bowes, 1951); reprinted with


additional explanatory notes as 'Political Education', in Ratiotu~lism in
Politics, pp. 111-36.
'On Being Conservative' (1956), in Ratiotu~lism in Politics, pp. 168-96.
'Die Massen in der reprasentativen Demokratie', in Masse und Demokratie, ed.
A. Hunold (Erlenbach-Zurich und Stuttgart: Rentsch, 1957), pp. 189-214;
trans. and rpt. as 'The Masses in Representative Democracy', in Freedom
and Serfdom: An Anthology of Western Thought, ed. A. Hunold (Dordrecht,
Holland: Reidel, 1961), pp. 151-70.
'The Moral Life in the Writings of Thomas Hobbes' (1960), in Ratiotu~lism in
Politics, pp. 248-300.
'Political Laws and Captive Audiences', in Talking to Eastern Europe, ed.
G. R. Urban (London: Eyre and Spottiswoode, 1964), pp. 291-301.
'The Vocabulary of a Modern European State', Political Studies, 23 (1975),
319-41, 409-14.
'Talking Politics', Natiotu~l Review, 27 (1975), 1345-7, 1423-8.
'The Rule of Law' (1983), in On History, pp. 119-64.

F.A. HAYEK
Books

The Road to Serfdom (London: George Routledge and Sons, 1944).


The Constitution of Liberty (London: Routledge and Kegan Paul, 1960).
Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice
and Political Economy, Vol. 1 Rules and Order (London: Routledge and
Kegan Paul, 1973).
Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice
and Political Economy, Vol. 2 The Mirage of Social Justice (London: Routledge
and Kegan Paul, 1976).
Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice
and Political Economy, Vol. 3 The Political Order of a Free People (London:
Routledge and Kegan Paul, 1979).
Rules and Order, The Mirage of Social Justice and The Political Order of a Free
People were published together in 1982 as a single volume under the title
Law, Legislation and Liberty: A New Statement of the Liberal Principles of
Justice and Political Economy (London: Routledge and Kegan Paul, 1982). It
is the single-volume edition of Law, Legislation and Liberty from 1982
which is cited in this text.

RONALD DWORKIN
Books

Taking Rights Seriously (1977), 2nd edition with a Reply to Critics (London:
Duckworth, 1978).
A Matter of Principle (Cambridge, Massachusetts: Harvard University Press,
1985).
258 Bibliography

lAw's Empire (Cambridge, Massachusetts: Harvard University Press, 1986).


A Bill of Rights fur Britain, Counterbhlsts, No. 16 (London Chatto and Windus,
1990).

Articles

'Lord Devlin and the Enforcement of Morals', Yale lAw Journal, 75 (1965--6),
986-1005; rev. and rpt. as 'Liberty and Moralism', in Taking Rights
Seriously, pp. 240-58.
'The Model of Rules', University of Chicago lAw Review, 35 (1967), 14-46; rev.
and rpt. in Taking Rights Seriously, pp. 14-45.
'On Not Prosecuting Civil Disobedience', New York Review of Books, 10 (6
June 1968), 14-21; rev. and rpt. as 'Civil Disobedience', in Taking Rights
Seriously, pp. 206-22.
'Taking Rights Seriously', New York Review of Books, 15 (17 December 1970),
23-31; rev. and rpt. in Taking Rights Seriously, pp. 184-205.
'The Jurisprudence of Richard Nixon', New York Review of Books, 18 (4 May
1972), 27-35; rev. and rpt. as 'Constitutional Cases', in Taking Rights
Seriously, pp. 131-49.
'The Original Position', University of Chicago lAw Review, 40 (1973), 500-33;
rev. and rpt. as 'Justice and Rights', in Taking Rights Seriously, pp. 150-83.
'Did Mill Go Too Far?', New York Review of Books, 21 (31 October 1974), 21-3;
rev. and rpt. as 'Liberty and Liberalism', in Taking Rights Seriously, pp.
259--65.
'Hard Cases', Harvard lAw Review, 88 (1975), 1057-1109; rev. and rpt. in
Taking Rights Seriously, pp. 81-130.
'DeFunnis versus Odegaard and the University of Washington', New York
Review of Books, 23 (5 February 1976), 29-33; rev. and rpt. as 'Reverse
Discrimination', in Taking Rights Seriously, pp. 223-39.
'What Rights Do We Have?', in Taking Rights Seriously, pp. 266-78.
'Can Rights be Controversial?', in Taking Rights Seriously, pp. 279-90.
'Why Bakke Has No Case', New York Review of Books, 24 (10 November
1977), 11-15; rev. and rpt. as 'Bakke's Case Are Quotas Unfair?', in A
Matter of Principle, pp. 293-303.
'Political Judges and the Rule of Law', Proceedings of the British Academy, 64
(1978), 259-87.
'The Bakke Decision: Did It Decide Anything?', New York Review of Books, 25
(17 August 1978), 20-5; rev. and rpt. as 'What Did Bakke Really Decide?',
in A Matter of Principle, pp. 304-15.
'No Right Answer?', New York University lAw Review, 53 (1978), 1-32; rev.
and rpt. as 'Is There Really No Right Answer in Hard Cases?', in A Matter
of Principle, pp. 119--45.
'Liberalism', in Public and Private Morality, ed. Stuart Hampshire (Cam-
bridge University Press, 1978), pp. 113-43.
'The Rights of Myron Farber', New York Review of Books, 25 (26 October
1978), 34--6; rev. and rpt. as 'The Farber Case Reporters and Informers', in
A Matter of Principle, 373-80.
Contribution to 'Some Views of Mrs Thatcher's Victory', New York Review of
Books, 26 (28 June 1979), 27-30.
Bibliography 259

'How to Read the Civil Rights Act', New York Review of Books, 26 (20
December 1979), 37-42; rev. and rpt. in A Matter of Principle, pp. 316-31.
'Is Wealth a Value?', Journ~~l of Legal Studies, 9 (1980), 191-226; rev. and rpt.
in A Matter of Principle, pp. 237-66.
'Why Efficiency?', Hofstra lAw Review, 8 (1980), 563-90; rev. and rpt. in A
Matter of Principle, pp. 267-89.
'Is the Press Losing the Fll'St Amendment?', New York Review of Books, 27 (4
December 1980), 49-57; rev. and rpt. in A Matter of Principle, pp. 381-97.
'Is There a Right to Pornography?', Oxford Journ~~l of Legal Studies, 1
(Summer 1981), 177-212; rev. and rpt. as 'Do We Have a Right to
Pornography?', in A Matter of Principle, pp. 335-72.
'What Is Equality? Part 1: Equality of Welfare', Philosophy and Public Affairs,
10 (Summer 1981), 185-246; 'What Is Equality? Part 2: Equality of
Resources', Philosophy and Public Affairs, 10 (Fall 1981), 283-345.
'Why Liberals Should Believe in Equality', New York Review of Books, 30 (3
February 1983), 32-5; rev. and rpt. as 'Why Liberals Should Care about
Equality', in A Matter of Principle, pp. 205-13.
'To Each His Own', New York Review of Books, 30 (14 April 1983), 4--6; rev.
and rpt. as 'What Justice Isn't', in A Matter of Principle, pp. 214-20.
'Civil Disobedience and the Nuclear Protest' (1983), in A Matter of Principle,
pp. 104-16.
'Reagan's Justice', New York Review of Books, 31 (8 November 1984), 27-31.
'Can a Liberal State Support Art?', in A Matter of Principle, pp. 221--33.
'The High Cost of Virtue', New York Review of Books, 32 (24 October 1985),
37-9.
'The Bork Nomination', New York Review of Books, 34 (13 August 1987), 3-10.
'From Bork to Kennedy', New York Review of Books, 34 (17 December 1987),
36-42.
'The Great Abortion Case', New York Review of Books,36 (29 June 1989),49-53.
'The Future of Abortion', New York Review of Books, 36 (28 September
1989), 47-51.

JOHN FINNIS
Books

Natural Law and Natural Rights (Oxford: Clarendon Press, 1980).


Fundamentals of Ethics (Oxford: Clarendon Press, 1983).
Nucll!llr Deterrence, Morality and Rl!lllism, with Joseph M. Boyle, Jr. and
Germain Grisez (Oxford: Clarendon Press, 1987).

Articles

'Blackstone's Theoretical Intentions', Natural Law Forum, 12 (1967), 163-83.


'Reason and Passion: The Constitutional Dialectic of Free Speech and
Obscenity', University of Pennsylvania Law Review, 116 (1967), 222-43.
'Natural Law and Unnatural Acts', Heythrop Journ~~l, 11 (1970), 365-87.
260 Bibliography

'Reason, Authority and Friendship in Law and Morals', in Jowett Papers


1968-1969, ed. B. Y. I<hanbai, RS. Katz and RA. Pineau (Oxford: Basil
Blackwell, 1970), pp. 101-24.
The Restoration of Retribution', Analysis, 32 (1972), 131-5.
'Some Professorial Fallacies about Rights', Adelaide Law Review, 4 (1972),
377-88.
The Rights and Wrongs of Abortion: A Reply to Judith Thomson',
Philosophy and Public Affairs, 2 (Winter 1973), 117--45.
'Scepticism, Self-Refutation, and the Good of Truth', in Law, Morality and
Society: Essays in Honour of H. L.A. Hart, ed. P.M.S. Hacker and J. Raz
(Oxford: Clarendon Press, 1977), pp. 247-67.
Index
abortion Dworkin on, 178
Dworkin on, 232 Dworkin and, 167-8, 194
Finnis on, 223, 224 Finnis on, 197-8
absolutism, xi, 9, 131, 237 Finnis and, xv, 125, 205, 239
Acton, Lord Fuller on, 68
Oakeshott on, 237 Fuller and, 64, 235
adjudication, 3, 19, 23, 61-2 Hayek and, 126
Dworkin on, 145, 14~53, 155--63, Oakeshott on, 74, 77, 124, 224
171-2, 175-7, 179-80, 188-93, Oakeshott and, xiii, 71
231-2 Attlee, Oement, the Government of
Fuller on, 29, 30, 42-5, 57, 58-63 Oakeshott on, 139, 140
Hayek on, 127, 130-4, 13~7, Austin, John, xiii, 13-15, 17-20,
143-4 23-4, 69
Oakeshott on, 81, 83-5, 175-6 Dworkin on, 145, 147, 148, 153
see also common law; hard cases; Dworkin and, 238
judge-made law; judicial Finnis on, 197, 198, 199
deliberation; judicial Finnis and, 125, 207
discretion; judicial Fuller on, 31, 40-2, 43-4, 58
independence; judicial Fuller and, 30, 61
legislation; legal naturalism Hayek on, 237
American legal realism, xi, 16, 17, Oakeshott and, 69, 72, 121,
29 122-4
Fuller on, 31, 40-1, 57 authority, of law and of the
analytical jurisprudence, 15 state, see under
Aquinas, StThomas, x, xi, 7-8, constitutionalism, the
21-2, 24, 28, 75-7, 94, 111, principles of; justice -
114-15, 217-18 distributive, procedural; law
Dworkin and, 194 and morality, the relationship
Finnis on, 197-8, 202, 205-9, 213, between; natural law, the
217,218,222-3,239 philosophy of; natural law, the
Finnis and, xv, 53, 69, 125, 196 principles of; natural right, the
Fuller on, 48 philosophy of; obligation to
Hayek and, 126 obey the law, the; rule of law,
Oakeshott on, 74, 77, 124, 224 the principles of the; social
Oakeshott and, xiii, 71 contract, theories of the
arbitration Ayer, A.J., 33, 34
Fuller on, 45 see also emotive theory of ethics
Arendt, Hannah, xvii
see also totalitarianism Bacon, Sir Francis
Aristotle, x, xi, S-6, 7, 8, 11, 21-2, 24, Oakeshott on, 90, 95-6, 235
28, 34, 36, 75, 94, 107, 111 see also rationalism

261
262 Index

Beale, Joseph Henry, 15 ends dualism; practical


see also case law method in reason; universalizability, as
AJnericanlegaleducation a formal principle of
Bentham, Jeremy, xiii, xv, 1-4, practical reason
11-15, 17, 18, 19, 20, 25, 26 Christianity
Dworkin on, 145, 148 Christianity and the philosophy
Dworkin and, 238 of natural law, 7, 75-6
Finnis on, 197, 199 Finnis on Christian belief and its
Finnis and, 207 relation to the philosophy of
Fuller and, 61, 235 natural law, 222-3
Hayek on, 130, 133, 237 Finnis on Judaeo--Christian ethics
Oakeshott on, 236 as constitutive of the
Oakeshott and, 72, 121, 122-4 common morality of the
see also command theory of law; West, 216-21
legal positivism; Church, the
utilitarianism Finnis and, 223
Berlin, Sir Isaiah, xvii, 46-7, 65 Oakeshott on in relation to the
Dworkin on, 169 emergence of the modem
see also totalitarianism European state, 86
Blackstone, Sir William, 3, 61-2 see also Christianity; Reformation
Finnis on, 197 Cicero, Marcus Tullius, 7
Hayek and, xiv, xvi, 238 civil association, see under
Bodin, Jean, xi, 4 Oakeshott, Michael
Oakeshott on, 89, 123, 125, 214, civil disobedience
236 Dworkin on, 182-4, 233-4
Bork, Judge Robert Rawls on, 103
Dworkin on, 191-2, 192 see also obligation to obey the law,
Boyle, Joseph M., Jr., 215-21 passim the; unjust laws, the duty to
Bradley, Francis Herbert, 72, 73 comply with
Burke, Edmund, 10, 167 classical economics, 13, 135-6
Hayek on, 128, 130, 237, 238 see also capitalism; free market
Oakeshott on, 236 economy, the principles of
the; Smith, Adam
Cajetan, Cardinal, Tommaso de Vio Coke, Sir Edward, 3
Finnis on, 209 Hayek on, 130
capitalism, xviii, 240-1 Hayek and, xiv, xvi
see also free market economy, the Cold War, xvii, xviii, xix, 221
principles of the collectivism
Carter, Jimmy, the Administration Dworkin and, 172, 210
of, 215 Fuller and, 65-6
case law method in American legal Hayek on, 127, 229-30, 233, 237
education, 15-16, 17 Oakeshott on, 71-2, 90, 139-41,
see also legal formalism in 233,237
America see also socialism; totalitarianism
categorical imperative, 36-7, 106-8 Collingwood, Robin George, 72
Finnis on, 202-3 command (or imperative) theory of
Rawls and, 109 law, 1-4, 8, 12-14, 17, 19, 23
see also fact-value distinction; Finnis and, 207-8
Kant, Immanuel; means- Oakeshott and, 122-3
Index 263

see also Austin, John; Bentham, Rawls on, 99


Jeremy; Hart, H. L.A.; see also adjudication; common
Hobbes, Thomas; legal law; inner morality of law,
positivism; legislation, the the principles of the; judicial
law of; voluntarism independence; law and
common law, 3-4, 61-2 morality, the relationship
Dworkin on, 147, 151, 171-2 between; liberal
Finnis and, 196-7 constitutionalism, the
Fuller on, 43, 57~, 226 philosophy of; rule of law,
Hayek on, 127, 130-2, 136-7, 143 the principles of the; state,
see also adjudication; Blackstone, the
Sir William; hard cases; constitutive political morality of
judge-made law; judicial liberalism, see under Dworkin,
deliberation; judicial Ronald
discretion; judicial constructive interpretation, see
independence; judicial under Dworkin, Ronald
legislation; legal naturalism; constructivist rationalism, see under
legal principles Hayek, F.A.
communism contract, see under contract, law of;
Fuller on, 65-6 freedom of contract
Oakeshott on, 141 contract, law of
see also collectivism; Marxism- Fuller on, 45, 57, 58
Leninism; socialism; Soviet Hayek on, 131
Union; totalitarianism see also free market economy, the
consequentialism, as a method of principles of the; freedom of
practical deliberation contract
Finnis on, 203, 204-5, 219-21 conventionalism, see under
see also Bentham, Jeremy; Dworkin, Ronald
practical reason; Counter-Reformation, 7, 89
utilitarianism custom, law of, 16, 61
Constitution of the United States Fuller on, 45, 58-9, 68
Dworkin on, 152, 160-3, 169-71, Hayek on, 128, 130
181-3,191-2,224,233-4 Oakeshott on, 87
Finnis on, 224
Fuller on, 49 democracy, 13, 22
Hayek on, 238 Dworkin on, 151-2, 160-2, 183,
Oakeshott on, 237 187-8,192-3,226,233
constitutional government, the Fuller on, 65
principles of, see under Hayek on, 65, 133-4
constitutionalism, the Oakeshott on, 65, 83-4, 102-3,
principles of 139, 236
constitutionalism, the principles of Rawls on, 55, 99, 102-3
Dworkin on, 151-2, 160-3 passim, see also liberal democracy
182-3 deontological liberalism (liberalism
Finnis on, 54, 216-17 understood as a deontological
Fuller on, 49, 49-52, 57-9, 61, 65, theory of political morality)
235 Dworkin on Rawls in relation
Hayek on, 130-1, 133-4 to, 177-8
Oakeshott on, 81, 83-7 Dworkin and, 166-7
264 Index

deontologicalliberalism (cont.) legal rules and legal principles


Rawls and, 11~11 contrasted by, 14&-8
Sandel on, 110 principles and policies contrasted
see also Kant, Immanuel; Rawls, by, 147, 149-50
John on purpose as a concept essential
Descartes, Rene, 91-5 to the interpretation of the
Hayek on, 129, 130 law, 154-5
Oakeshott on, 91, 95-6, 235 resource-based, welfare-based
see also rationalism and libertarian theories of
dirigisme, see under collectivism distributional equality
distributional equality, theories distinguished by, 172-4
of, see under Dworkin, Ronald right to equality of concern
Dulles, John Foster, 215 and respect defined
Durkheim, Emile, 16, 17 by, 169-71
Dworkin, Ronald, x, xi, xii, xiv-xv, right-based and goal-based
xv, xv-xvi, xvii, xviii, xix, 2&-9, theories of political morality
43,63,69, 85,125-6,142, distinguished by, 178
144-95,196,198,212-14,224-5, on the rulebook model of
22&-7,~,238,239,240,241 law, 165-6
constitutive political morality of
liberalism defined economic analysis of law
by, 16&-7, 172 Dworkin on, 188-91
constructive interpretation Eisenhower, Dwight D., the
discussed by as the form of Administration of, 215
interpretation appropriate to
emotive theory of ethics, 33
the understanding of law Fuller on, 67, 235
and other social Enlightenment, 25, 94, 234-40
practices, 15~5 Dworkin and, 234, 238
conventionalism, pragmatism
Finnis and, 234, 238-9
and law as integrity Fuller and, 234-5
distinguished by as general Hayek and, 234, 237-8
theories of law, 155-60,
Oakeshott on, 90, 95-7
17&-7
Oakeshott and, 117, 234-7
on hard cases, 148-52
see also liberalism; rationalism
on historicist theories of
enterprise association, see under
adjudication, 160, 191-2
Oakeshott, Michael
judicial activism and judicial
entitlement theory of justice, see
passivism distinguished by
under Nozick, Robert
as theories of constitutional
Entreves, A. P., d', x-xi
adjudication, 1~3
eunomics, see under Fuller, Lon L.
justice, fairness, procedural due
evolutionary rationalism, see under
process and integrity defined
Hayek, F. A.
by as distinct virtues of law
and political
institutions, 1~ fact-value distinction, 31-4, 3&-8
law as a community of principle Fuller on, 31, 38-41
discussed by as an ideal see also Hume, David; Kant,
form of legal and political Immanuel; means-ends
order, 164-6 dualism; practical reason;
Index 265

purpose, as a concept Oakeshott on, 141


essential to the interpretation Oakeshott and, xiii, 118, 139-42,
of the law, and as a concept 235
essential to the justification Rawls on, 99-100
of the moral authority of law see also contract, law of; freedom
and the state of contract; private property;
fairness, as a distinct virtue of law Smith, Adam
and political institutions, see freedom of contract, 16-17, 18
under Dworkin, Ronald Fuller on, 65
fascism Hayek on, 27, 63, 127, 136-7,
Hayek on, 128 142-3, 226, 229
see also national socialism; Nozick and, 118
totalitarianism Oakeshott and, 142
feudalism, 16, 237 Rawls on, 99
Oakeshott on, 86, 90 see also contract, law of; free
Finnis, John, x, xi, xii, xv, xvii, market economy, the
xviii, xix, 26-9, 53-4, 66, 69, 70, principles of the
125,196-228,232-4,238-41 Fukuyama, Francis, 241
on the basic human goods and Fuller, Lon L, x, xi, xi-xii, xiv,
values as principles of xv-xvi, xvii, xvii-xviii, xix, 29,
natural law, 2~1 30-70, 71-2, 84-5, 125-6, 126,
on the common good as the 143, 180, 196, 198, 199,224, 226,
foundation of the moral 227,232-5,239,240-1
authority of law, 197, 205-7, eunomics defined by as a science
210-11, 213-14 of legal and social
on Judaeo-Christian ethics as the processes, 4~7, 64, 67
basis of the common on the inner or procedural
morality of the West, 216-21, morality of law, 47-52, 53
232 law and managerial direction
on the principles of practical distinguished by as
reasonableness constituting processes of social
the normative principles of ordering, 50-2
natural law, 201-5 law defined by as a purposive
Franco, Paul, xiii form of social order, 40, 51
Frank, Judge Jerome, 16, 17 on purpose as a concept essential
free enterprise, see under free to the interpretation of the
market economy, the law, 39-43
principles of the on reciprocity of expectations
free market economy, the principles between law-maker and
of the, 18, 135-6 citizen as the foundation
Dworkin on, 172-4, 188-90,230 of the rule of law, 50-1, 58,
Dworkin and, 172, 190-1 66
Finnis and, 214
Fuller on, 66
Fuller and, 66-7 general will, 10-11
Hayek on, 27, 63, 69, 127, 136-9, Dworkin and the idea of
143-4, 226, 228-30 the, 167-8
Hayek and, xiv, 230, 241 see also Rousseau, Jean-Jacques
Nozick and, 118 Gray, John Chipman, 16
266 Index

GreatScKiety,xviti universali.zability discussed by as


Dworkin on, 187, '126-7 a methodological principle
Green, Thomas Hill, 72, 73 governing legal
Grisez, Germain, 215-21 passim reasoning, 131-2
Grotius, Hugo, 8, 61 Hegel, G. W.F., xi, 10, 11, 21-2,
Finnis on, 213 72-3, 75, 94-5
Dworkin and, 167-8
hard cases Finnis and, 205
Dworkin on, 148-52, 156-8, Fullerand,46
179-80 Oakeshott on, 89, 125, 214
Fuller on, 43 Oakeshott and, 72, 73, 74, 95, 96,
Hayek on, 131-2 1'12
see also adjudication; common Rawls and, 104, 113
law; judicial deliberation; historical jurisprudence, xi, 16, 17
judicial discretion; judicial see also Maine, Sir Henry;
legislation; legal naturalism Savigny, Friedrich Carl von
Hare, R M., 33--4 Hobbes, Thomas, xi, xv, 4-5, 8-12,
see also prescriptivism 17, 18, 24, 46, 47, 49-50, 105,
Hart, H. L.A., xvii, 19, '12~, 28, 152 108, 109, 114, 135, 142
Dworkin on, 147, 148 Dworkin and, 167, 169, 175, 194
Finnis on, 198, 199 Finnis on, 197-8, 212-13
Finnis and, '124 Finnis and, 206, 207, 215
Fuller on, 68 Fuller on, 31, 41-2
Fullerand,53,54,66 Fuller and, 49-50
Oakeshott and, xiii, 69, 121-5 Hayek on, 127, 130, 237
Hayek, F. A., x, xi, xii, xiii-xiv, xiv, Hayek and, '129, 237
xv, xvi-xvii, xvii, xviii, xix, Oakeshott on, 74, 77-80, 81, 89,
26-9, 63, 64, 65, 66, 67, 69, 71, 104, 123, 124, 125, 126, 141-2,
72, 126-40, 142-4, 171-2, 174, 178-9, 214, 236
191, 196, 210, 214-15, '124, 225, Oakeshott and, xiii, xiv, xvi, 28,
'126, '127-30, 230, 232, 233, 234, 69, 71, 72, 98, 118, 119, 214
237-41 Hohfeld, W. N., 15
constructivist rationalism and Holland, Sir Thomas Erskine, 15
evolutionary rationalism Holmes, Oliver Wendell, 16
contrasted by as theoretical Hooker, Richard, 7, 114-15, 197
approaches to the Humboldt, Wilhelm von
understanding of social Hayek on, 238
order, 128-9 Hume, David, 12-13, 21, '12, 24,
judge-made law defined by as a 31~,38, 135
system of rules of just Finnis on, 202
conduct, 130-1 Fuller and, 38, 39, 45, 46, 235
judge-made law and the law of Hayek on, 128, 135, 237,
legislation distinguished 238
by, 130-4 Oakeshott on, 236
on the relationship between the Rawls and, 109
market economy and the see also fact-value distinction;
rule of law, 136-9 meaillH!nds dualism;
taxis and kosmos distinguished by practical reason;
as types of social order, 129 utilitarianism
Index 267
idealisDl,35-6,94-5 hard cases; judicial
Oakeshott and, 72, 73, 95, 121, deliberation; judicial
122 discretion; judicial
see also Hegel, G. W. F.; Kant, legislation; legal naturalisDl
hrunanuel judicial deliberation
inlperative theory of law, see under Dworkin on, 147-52, 155-63
conlnland theory of law passim, 176-7, 179--80
inner (or internal or procedural) Fuller on, 42-5, 58--63
DlOrality of law, the principles Hayek on, 1~2
of the Oakeshott on, 84-5, 175-6
Dworkin on, 26-8, 155-8 passim, see also adjudication; conlnlon
163, 175-7, 180, 226-7, law; hard cases; judicial
230-1 discretion; judicial
Finnis on, 26-8, 53--4, 66, 1%, 208, legislation; legal naturalisDl
210,216-17 judicial discretion
Fuller on, xii, 29, 30, 47-53, 56-8, Dworkin on, 148-9, 156-7,
64,66-7,226,227,233,235 179--80
Hart on, 53, 66 Hayek on, 131-2
Hayek on, 26-8, 69, 126-7, 131-4, see also adjudication; conlnlon
136--8, 143, 226-30, 233 law; hard cases; judicial
Oakeshott on, xii, 26-8, 69, 71, deliberation; judicial
80-3, 89, 101, 118, 1~5, 142, legislation; legal naturalisDl
226-8,233 judicial independence
Rawls on, ~' 66, 102 Dworkin on, 151-2
see also constitutionalisDl, the Fuller on, 43-5, 61, 65
principles of; justice, Hayek on, 127, 131, 134
procedural; law and Oakeshott on, 81, 83-4, 126
Dlorality, the relationship see also adjudication; conlnlon
between; liberal law; constitutionalisDl, the
constitutionalisDl, the principles of; liberal
philosophy of; natural law, constitutionalisDl, the
the philosophy of; rule of philosophy of; rule of law,
law, the principles of the the principles of the
integrity, as a distinct virtue of law judicial legislation (the idea of
and political institutions, see judges as legislators)
under Dworkin, Ronald Dworkin on, 148-9, 151-2, 156-8,
internal Dlorality of law, see under 160-1, 176
inner Dlorality of law, the Fuller on, 43-4
principles of the Oakeshott on, 84
see also adjudication; conlnlon
law; hard cases; judicial
Johnson, Lyndon B., xviii, 187, 227 deliberation; judicial
see also Great Society discretion; legal naturalisDl
judge-Dlade law, 3-4, 61-2 judicial reasoning, see under judicial
Dworkin on, 148-51 deliberation
Fuller on, 60-1 jurisprudence, its relation to Dloral
Hayek on, 1~2 andlegalphilosophy,seeun~
see also adjudication; Blackstone, law and Dlorality, the
Sir WilliaDl; conlnlon law; relationship between
268 Index

jurisprudence of interests see also adjudication;


Fuller on, 67 constitutionalisDl, the
just war, theory of the, 217-18 principles of; inner 01orality
Finnis on in relation to nuclear of law, the principles of the;
deterrence, 217-19 law and Dlorality, the
see also Aquinas, St Thomas relationship between;
justice natural law, the philosophy
commutative: Finnis on Aquinas of; obligation to obey the
in relation to, 208-9 law, the; rights -
distributive: Dworkin on, 163, constitutional, den1ocratic,
172-4, 188-91 passim; Finnis egalitarian,
on, 20S-11; Finnis on hUDlan, individual, natural,
Aquinas in relation procedural; rule of law, the
to, 20S-9; Fuller and, 56, principles of the
66-7; Hayek on, 137-9; justice, defined as a distinct virtue
Nozick on, 115-17; of law and political
Oakeshott on, 101; Rawls institutions, see under Dworkin,
on,55-6,9S-101, 113 Ronald
legal (formal): Finnis on justice as fairness, see under Rawls,
Aquinas in relation John
to, 208-9; see also under justice as regularity, see under
justice, procedural Rawls, John
natural justice, the basic
principles of in adjudication Kant, lDlmanuel, 9, 11, 21, 22, 35-8,
and in the administration of 94, 106-9
the law, see undi!T justice, Dworkin and, 145, 166--7, 194,
procedural 214, 238
procedural (or legal or formal): Finnis on, 202-3, 23S-9
Dworkin on, 27-9, 163, 164, Finnis and, xv, 196, 223
176-7, 180,226-7,230-1; Fuller on, 67
Finnis on, 27-8, 29, 54, 196, Fuller and, 38, 39, 45, 64, 235
205; Fuller on, 29, 30, 43-5, Hayek on, 238
47-52 passim, 53, 56, 57-8, Nozick and, 117
59-60, 180,226,227,233,235; Oakeshott on, 89, 214, 236
Hayek on, 27-8, 29, 126-7, Rawls on, 106, 109
131-3, 137-8, 143, 226, Rawls and, 110
22S-30, 233; Nozick on, 116, see also categorical imperative;
120; Oakeshott on, 27-8, 29, 01eans-ends dualism;
69, 71-2, 80-1, 83, 89, 101, practical reason
118, 120, 123-5, 142, 226-8, Kelsen,Hans, 19-22,24,28,31,145
233; Rawls on, 54-6, 101-3, Fuller on, 40-1
103 Hayek on, 237
social: Dworkin and, 69, 170-1, Kennedy, John F., the
172, 175, 186-7; Fuller Administration of, 215
and, 56; Hayek on, 134, 13S- kosmos, see under Hayek, F. A.
9, 229-30; Oakeshott
and, 101; Rawls and, 54-6 laissez-faire, see under capitalism;
as a virtue, 5, 74-5: Finnis free market economy, the
and, 208; Rawls on, 112-13 principles of the
Index 269

Langdell, Christopher legal formalism in ~erica


Columbus, 15, 17 Fuller and, 57
Fuller and, 57 see also case law method in
see also case law method in American legal education
~ericanlegaleducation legal morality, see under inner
law, see under adjudication; legal morality of law, the principles
rules; rule of law, the of the
principles of the legal naturalism, 62
law and morality, the relationship Dworkin and, 125-6, 178-80
between, x, 1-2, 3, 7, 14-17, 19, Fullerand,29,62-3, 125-6
20-2, 24-6, 75-7 Hayek and, xiii-xiv, 130-1, 143-4
Dworkin on, 26-9 passim, 63, 69, Oakeshott and, xiii-xiv, 125-6,
125, 145-50, 152-3, 158-9, 178-80
163-8 passim, 175-7, 179-81, see also adjudication; Blackstone,
184-6, 194-5, 213, 214, Sir William; common law;
226-7 hard cases; judicial
Finnis on, 26-9 passim, 53-4, 69, deliberation; judicial
196-200, 205-8, 211-14, discretion; judicial
223-4,226,227 legislation
Fuller on, 29, 41-3, 47-52 passim, legal philosophy, its relation to
53, 58-9, 62-3, 68, 125, 180, moral and political
226 philosophy, see under law and
Hayek on, 26-9 passim, 63, 69, morality, the relationship
126-7, 132-3, 226 between
Oakeshott on, 26-9 passim, 69, 71, legal positivism, xi, 1-4, 11-15, 17,
80-1, 84-5, 89, 121-5, 175-7, 18-26,28
178-9,226 Dworkin on, 145-9, 153-7, 171,
see also adjudication; common 179--80, 194
law; constitutionalism, the Dworkin and, 27, 69, 125-6, 226,
principles of; hard cases; 238
inner morality of law, the Finnison, 196,197,198,199
principles of the; judicial Finnis and, 27, 69, 125, 207, 226
deliberation; justice, Fuller on, 30, 31, 38-44, 49, 50-2,
procedural; legal principles; 58, 60-1, 64, 68
liberal constitutionalism, the Fuller and, 29, 125-6, 226, 235
philosophy of; liberalism; Hayek on, 126, 130, 132-3
natural law, the philosophy Hayek and, 27, 69, 226, 237
of; rights - constitutional, Oakeshott on, 125
democratic, egalitarian, Oakeshott and, xiii, 27, 69, 71,
human, individual, natural, 121-6,226
procedural; rule of law, the see also Austin, John; Bentham,
principles of the Jeremy; command theory of
law as a community of law; Hart, H. L. A.; Kelsen,
principle, see under Dworkin, Hans; law and morality, the
Ronald relationship between; pure
law as integrity, see under Dworkin, theory of law; utilitarianism
Ronald legal principles
laws of nature, the, see under Dworkin on, 147-51
natural law, the principles of Fuller on, 42-4, 58-63
270 Index

legal principles (cont.) see also constitutionalism, the


Hayek on, 131-2 principles of; inner morality
Oakeshott on 84-5 passim of law, the principles of the;
see also adjudication; common judicial independence;
law; hard cases; judicial justice, procedural; law and
deliberation; judicial morality, the relationship
discretion; judicial between; liberalism; rights -
legislation; legal naturalism constitutional, democratic,
legal rules egalitarian, human,
distinguished from legal individual, natural,
principles by procedural; rule of law, the
Dworkin, 146-8 principles of the
viewed by Fuller as non- liberal democracy, 186
instrumental rules, 50-2 Finnis on, 216-17, 21s-21 passim
defined by Hayek as Finnis and, xviii, 214, 224-5, 232
purpose-independent rules Hart and, 25
of just conduct, 133 Kelsen and, 21, 22
defined by Oakeshott as Rawls and, 99
non-instrumental rules, 8(}-1 see also democracy; liberal
legislation, the law of, 3-4, 16-17 constitutionalism, the
Dworkin on, 147, 159-60, 171 philosophy of; liberalism
Fuller on, 45, 50, 58-61 liberal theory of justice, see under
Hayek on, 127,130,132-4,136 Rawls, John: the principles of
Oakeshott on, 85-7, 119 justice as fairness defined by;
see also command theory of law; on the principles of the liberal
legal positivism; sovereignty, constitution
as a defining attribute of the liberalism, 9-10, 13, 25, 10s-9,
modem state 234-241 passim
Lenin, V.I. Dworkin on, 145, 166-70, 174,
Oakeshott on, 90 175, 177-8, 186-7, 192-3,
liberal conservatism 230-1,238
Hayek and, 71-2, 127 Dworkin and, xiv-xv, xv, xviii,
Oakeshott and, 71-2, 117 xix, 69-70, 167-8, 184-6,
see also capitalism; free market 193-5 passim, 234, 240-1
economy, the principles of Finnis on, 216-17, 221, 232, 23s-9
the; liberalism Finnis and, xv, xix, 69-70, 211-15,
liberal constitutionalism, the 223-5 passim, 234, 240-1
philosophy of, 9-10, 11, 13, 19, Fuller and, xii, xv, xix, 46-7, 64,
234-41 passim 67,69-70,234,240-1
Dworkin and, xvii, 2s-9, 171-2, Hayek on, 127-8, 237-8
175,238 Hayek and, xv, xix, 69-70, 139,
Finnis and, xvii, 2s-9, 214-15, 234,240-1
238-9 Nozick and, 117-18, 120
Fuller and, xvii, 29, 64, 234-5 Oakeshott on, 79-80, 89, 97, 98,
Hayek on, 128, 134-5, 237-8 236
Hayek and, xvi, xvii, 2s-9, 64, Oakeshott and, xiii, xv, xix,
171-2, 215 69-70,80,104-5,111,113-14,
Oakeshott and, xvi, xvii, 2s-9, 64, 117-18, 120, 234, 236-7,
104, 118, 215, 236-7 240-1
Index 271

Rawls and, 9~100, 104-5, market economyI market


109-14 society, see under free market
see also constitutionalism, the economy, the principles of the
principles of; inner morality marriage
of law, the principles of the; Fmnis on, 223
justice - distributive, Marx, Karl, 16, 18
procedural; liberal see also Marxism-Leninism
conservatism; liberal Marxism-Leninism, xix, 240-1
constitutionalism, the Finnis on, xviii, 215-17, 221, 225,
philosophy of; liberal 234
democracy; natural law, the Fullerand,65
philosophy of; natural right, Oakeshott and, 97
the philosophy of; social see also totalitarianism
contract, theories of the; means-ends dualism
rights - constitutional, Fuller on, 38, 39, 45-6
democratic, egalitarian, Hume and, 32-3
human, individual, natural, Kant and, 36-7, 106-7, 107
procedural; rule of law, the see also fact-value distinction;
principles of the Hume, David; Kant,
limited government, see under Immanuel; practical reason;
constitutionalism, the utilitarianism
principles of; liberal mediation
constitutionalism, the Fuller on, 45
philosophy of Meese, Edwin, 192
Llewellyn, Karl Nickerson, 16, 17 Mill, John Stuart, 13, 25
Locke,John,9-10, 11,21,22,34,35, Dworkin on, 1~70
46-7, 50, 61, 72-3, 105, 114-15, Dworkin and, 194, 238
135, 167 Fuller on, 47
Finnis and, 206 Hayek and, 237
Hayek on, 238 Oakeshott on, 89, 237
Nozick and, 114, 115, 117-19, minimal state, see under Nozick,
214 Robert
Oakeshott on, 89, 236 Montesquieu, Charles-Louis de
Oakeshott and, 117, 118, 119 Secondat, baron de, 10
Oakeshott on, 89, 236
Machiavelli, Niccolo
Oakeshott on, 236 national socialism
Macintyre, Alasdair, 240 Hayek on, 128
Madison, James Oakeshott on, 89, 141
Oakeshott on, 236 see also totalitarianism
Maine, Sir Henry, 16-17 natural law, the philosophy of, x-
Hayek on, 130, 237 xi, xi, 2, 3, 4-8, 11, 21, 24, 38,
majoritarianism/ majority rule, see 61-2, 74-7, 114-15
under democracy Dworkin and, x, 27-8, 28, 69, 125,
managerial direction, see under 145-6, 180, 185-6, 193-5, 226
Fuller, Lon L. Fmnis on, 196-200,202-9,212-15,
Mandeville, Bernard de 222-5 passim
Hayek on, 128 Finnis and, x, xv, 27-8, 53-4, 69,
Markby, Sir William, 15 125, 226, 227
272 Index

natural law: philosophy of (cont.) Finnis and, 197, 214-15, 223, 239
Fuller on, 30-1, 39-43, 47-9 Hayek and, 229
passim, 58, 63-4, 68, 235 Oakeshott on, 77-80
Fuller and, x, xi-xii, 29, 47, 61, Oakeshott and, 69, 71, 214-15,
62-3,65,125,180,226 229,236
Hayek and, x, 27-8, 69, 126-7, see also Hobbes, Thomas; social
226 contract, theories of the;
Nozick and, 114, 115, 11s-21 Spinoza, Benedict de
Oakeshott on, 71-2, 74, 77-80, New Deal
97-8, 124-5 Dworkin on, 175, 186, 186-7,
Oakeshott and, x, xiii, 27-8, 69, 226-7
11s-23, 124, 226 New Right in America
see also Aquinas, St Thomas; Dworkin on, 174, 191-3
Aristotle; Blackstone, Sir Dworkin and, 187-8
William; constitutionalism, Nixon, Richard M., the
the principles of; Hobbes, Administration of, 215
Thomas; inner morality of nominalism, 8, 236
law, the principles of the; see also voluntarism
justice - distributive, nomocracy, see under Oakeshott,
procedural; law and Michael
morality, the relationship Nozick, Robert, xiii, xviii, 114-21,
between; legal naturalism; 191, 214
Locke, John; natural law, on the entitlement theory of
the principles of; Plato; justice, 116-17
rights - constitutional, Finnis on, 198, 209
human, individual, natural, Finnis and, 210-12, 224
procedural; rule of law, the on the idea of the minimal
principles of the state, 115, 117-19, 120
natural law, the principles of Oakeshott and, 98, 117-21
Aquinas on, 7, 75-7 nuclear deterrence
Blackstone on, 61-2 Dworkin on, 233-4
Finnis on, 198, 200-5, 211-12, Finnis on, 215-22, 232, 234
222-4 see also just war, theory of the;
Finnis on Blackstone in relation unilateral nuclear
to, 197 disarmament
Fuller on Hobbes in relation
to, 41-2
Hart on, 24 OakeshoH, Michael, x, xi, xii,
Hobbes on, 8 xii-xiv, xv, xvi-xvii, xvii, xviii,
Locke on, 114-15 xix, 26-9, 64, 65, 67, 69, 71-98,
Oakeshott on Hobbes in relation 101, 102, 104-5, 111, 113, 114,
to, 7s-9, 124-5 117-26, 133, 139-44, 171,
see also natural law, the 175-80, 196, 210, 212, 214-15,
philosophy of; natural right, 224, 225, 226, 227-30, 232-7,
the philosophy of 239, 240, 241
natural right, the philosophy of, 8, on civil association, 80-6, 141-2
9, 11, 108 on enterprise association, 81-3
Dworkin and, 169, 175 on Hobbes as a theorist of civil
Finnis on, 212-13 association,73-4,77-80
Index 273

on the office of government of a the state, see under teleology:


modem European state teleological justifications of the
understood as a moral authority of law and the
nomocracy, 88 state
on the office of government of a Plato, x, xi, 5, 6, 8, 11, 21-2, 28, 74-5,
modem European state 107, 111
understood as a Dworkin and, 194
teleocracy, 88 Fmnis on, 197-8
on rationalism in politics, 91, Fuller on, 68
95-8 Fuller and, 64
on the state understood in terms Oakeshott on, 74, 77
of the idea of societas, 87-90 Oakeshott and, 71
on the state understood in terms polis, 5, 75
of the idea of Dworkin and the idea of the, 167,
universitas, 87-90 168
obligation to obey the law (as see also Aristotle; Plato
imposed by the state), the Popper, Sir Karl, xvii, 47, 65, 168
Dworkin on, 164-9 see also totalitarianism
Finnis on, 199-200, 205-8, 221-2 pornography
Fuller on, 50, 68 Dworkin on, 168
Oakeshott on, 81, 104, 178-9 Finnis on, 224
Rawls on, lOS Posner, Richard A.
see also Aquinas, St Thomas; Dworkin on, 188-9
Aristotle; Blackstone, Sir see also economic analysis of law
William; constitutionalism, Pound, Roscoe, 16
the principles of; Hegel, practical reason
G. W. F.; Hobbes, Thomas; Descartes and, 93--4
Hume, David; inner morality Finnis on, 198,200-5,219-20
of law, the principles of the; Hegel on, 94-5
justice - distributive, Hume on, 31-3
procedural; Kant, Immanuel; Kant on, 36-8, 106-8
liberal constitutionalism, the Oakeshott on, 95-6
philosophy of; liberalism; Rawls on, 106, 109
Locke, John; natural law, the see also categorical imperative;
philosophy of; natural right, consequentialism, as a
the philosophy of; Plato; method of practical
Rousseau, Jean-Jacques; rule deliberation; means-ends
of law, the principles of the; dualism; universalizability,
social contract, theories of as a formal principle of
the; voluntarism practical reason;
obligation, political, see under utilitarianism
obligation to obey the law, the pragmatism, see under Dworkin,
Ronald
Paine, Thomas prescriptivism, 33--4
Oakeshott on, 89, 236 Fuller and, 235
Pascal, Blaise private property, 9, 114-15
Oakeshott on, 236 Dworkin on, 172, 172-4, 188-91
perfection, the principle of as the passim, 22&-7, 230
basis for the moral authority of Finnis on, 205-6, 210-11
274 Index

private property (cont.) see also Bacon, Sir Francis;


Hayek on, 127-8, 131, 134, 137, Descartes, Rem!;
143,226,230 Enlightenment
Nozick on, 114-19 Rawls, John, xiii, xviii, 54-6, 63, 69,
Oakeshott on, 139-40 98-106, 109--114, 115-17, 120,
Oakeshott and, 119, 142 121, 138, 145, 146, 166, 169, 177,
Rawls on, 99-100 214
see also contract, law of; free the Aristotelian principle defined
market economy, the by, 112
principles of the; freedom of the difference principle defined
contract; Locke, John; rights, by, 100
property Dworkin on, 168-9, 177-8
procedural due process, as a Dworkin and, 63
distinct virtue of law and Finnison, 198,209,210
political institutions, see under Finnis and, 224, 225, 239
Dworkin, Ronald Fuller and, 54-6, 66-7, 67, 102
procedural morality of law, see Hayek and, 138
under inner morality of law, the the principles of justice as
principles of the fairness set out by, 55-6,
property, see under private 98-100
property the principles of justice as
punishment, 25-6 fairness defended by as the
Finnis on, 224 basis of social union, 112-13
pure theory of law, 19-22 the principles of justice as
Fuller on, 40-1 regularity defined by, 55
see also Kelsen, Hans on the lexical order of the
purpose, as a concept essential to principles of justice as
the interpretation of the law, fairness, 103, 111
and as a concept essential to on the principles of the liberal
the justification of the moral constitution, 55-6, 99, 102-3
authority of law and the state Oakeshott on, 101
Dworkin on, 125, 153-5, 159--60, Oakeshott and, 98, 100-2, 104-5,
180, 194 111, 113, 114, 120-1
Finnis on, 53-4, 198-9, 206-7 the original position
Fuller on, 39-43, 47, 51, 53, 57, characterized by, 105-6, 109,
62-3, 125, 180 111
Oakeshott on, 81-3, 87-8, 125, on the priority of the
228 right, 110-11
see also fact-value distinction; the thin theory of the good set
teleology: teleological out by, 111
conception of nature; the ideal of the well-ordered
teleological justifications of society defended by, 111-12
the moral authority of law Reagan, Ronald, xvii
and the state Reagan, Ronald, the Administration
of, 215
rationalism, 71,94 Dworkin on, 174, 191-2
Dworkin and, 238 see also New Right in America
Hayek on, 128-30, 237 Rechtsstaat, the principles of the, 9
Oakeshott on, 95-8, 235-6 Hayek on, 238
Index 275

reciprocity, see under Fuller, Lon L. on, 213-14; Rawls on, 55-6,
Reformation, xi 98-100, 113-14
Oakeshott on in relation to the human: Fnuus on, 27, 204-5,
emergence of the modern 211-12,216-17,227,238-9
European state, 86-90 individual: Dworkin on, 26-7,
representative democracy, see under 145-6, 150, 162-3, 166-72
democracy passim, 174, 177-82 passim,
reverse discrimination 188-94 passim, 226, 230-1;
Dworkin on, 170-1, 180, 181-2 Flnnis on, 26-7, 211-14, 223,
Nozick and, 117 226, 227, 238-9; Fuller
Ricardo, David, 13 on, 226; Hayek on, 26-7, 131,
rights 136-7, 143, 171-2, 226, 230;
constitutional: Dworkin on in Nozick on, 114-21 passim;
relation to the moral and Oakeshott on, 26-7, 104,
political rights of the 117-21 passim, 139,
individual affirmed in the 141-2 passim, 177-9 passim,
United States 226, 236; Rawls on, 98-9,
Constitution, 152, 160-3 103-4, 110-11, 113-14
passim, 169, 182, 183, 232; natural: Dworkin on, 168-9,
Rawls on in relation to the 173-4; Oakeshott on, 104
rights of the individual procedural (the right to due
guaranteed by the principles process of law; the rights
of the liberal constitution, 99, guaranteed by the principles
104,114 of the inner morality of law):
contractual (rights created Dworkin on, 27, 175, 226,
through the exercise of the 230-1; Finnis on, 27, 54,
fundamental right of 211-12; Fuller on, 43-5, 226;
freedom of contract): Hayek Hayek on, 27, 226; Oakeshott
on, 27, 63, 127, 131, 137, on, 27, 101, 142, 226; Rawls
142-3, 172, 226, 229; Nozick on,55-6,99
and, 116, 118 property: Dworkin on, 172-4,
conventional (the rights defined 189-90,226,230;Fnuus
by positive law): Dworkin on, 210-11; Hayek on, 27, 63,
on, 148-50 passim, 156-8, 127, 131, 136-7, 143, 172,226,
179-80, 189-90; Oakeshott 229; Nozick on, 114-16, 118;
on, 119, 126, 141-2, 178-80 Oakeshott on, 139-40; Rawls
democratic (the rights essential to on, 99-100
the full democratic see also Bentham, Jeremy;
participation by the constitutionalism, the
individual in the political principles of; Hart, H. L.A.;
process): Dworkin on, 169, Hegel, G. W. F.; Hobbes,
226; Oakeshott on, 102; Thomas; inner morality of
Rawls on, 55, 99, 103 law, the principles of the;
egalitarian (the rights of the justice - distributive,
individual guaranteed by the procedural; Kant, Immanuel;
principles of justice as law and morality, the
fairness): Dworkin on, 27, 63, relationship between; liberal
168-75 passim, 180-2, 187-8, constitutionalism, the
226-7,230-1;Fnuus philosophy of; liberalism;
276 Index

rights: see also (cont.) rulebook model of law, se


Locke, John; Mill, John Dworkin, Ronald
Stuart; natural law, the rules of law, see under leg
philosophy of; natural right,
the philosophy of; Rousseau, Saint-Simon, Claude-Heru
Jean-Jacques; rule of law, the Rouvroy
principles of the Oakeshott on, 90
Roman Catholic Church, the moral Salisbury, Robert Cecil, 31
teachings of the Marquess of
Finnis on, 223, 224 Oakeshott on, 236
see also Aquinas, St Thomas; Sandel, Michael J., 110
Christianity; natural law, the see also deontological Iii
philosophy of Savigny, Friedrich Carl v1
Roman law, x, 6-7 Hayek on, 130
Finnis on, 213 Shield Laws
Oakeshott on, 87 Dworkin on, 175
Roosevelt, F. D., the Sittlichkeit, 73
Administration of, 175, 186-7, Dworkin and the idea ~
226-7 see also Hegel, G. W. F.
see also New Deal Smith, Adam, 13, 134-6
Rousseau, Jean-Jacques, 10-11 Hayek on, 128, 135, 1~
Dworkin and, 167-8 see also capitalism; free
Fuller and, 46 economy, the princ
Rawls and, 104, 113 the
rule of law, the principles of the, 5, social contract, theories o
18 9-13, 46, 72-3, 114-1
Dworkin on, 27-9, 163--{; passim, Dworkin on, 168-9, 17.
175-6,180-1,226-7,230-2 Dworkin and, 164-5, 11
passim Finnis and, 206-7
Finnis on, 27-9, 54, 196, 205-6, Fuller and, 50-1
208-14,216-17,221-2,226, Hayek on, 129-30
227 Oakeshott on, 72, 73, 7
Fuller on, 29, 47-52 passim, 57-8, Oakeshott and, 121
65-7,226,227,233 Rawls on, 105-6
Hayek on, 27-9, 126-8, 130-4, Rawls and, 104-5
137-9, 143-4, 226, 228-30, see also Hobbes, Thomi
233 liberalism; Locke,
Oakeshott on, 27-9, 80-1, 83-6, obligation to obey
101, 122-5, 139-42 passim, the; Rousseau, Jea
226-8, 233, 236 voluntarism
see also adjudication; socialism
constitutionalism, the Hayek on, xiii, 128, 22
principles of; inner morality Oakeshott on, xiii, 139
of law, the principles of the; see also collectivism;
judicial independence; law totalitarianism
and morality, the societas, see under Oakes!
relationship between; liberal Michael
constitutionalism, the sociological jurispruden'
philosophy of see also sociology of la
Index 277

sociology of law, 16-18, 29 Rawls on, 98-100 passim, 104,


see also sociological 111-14 passim
jurisprudence see also Aquinas, St Thomas;
sovereign, theories of the, see under Aristotle; Austin, John;
absolutism; Austin, John; Bodin, Jean;
Bentham, Jeremy; Bodin, Jean; constitutionalism, the
command theory of law; Hart, principles of; Hart, H. L. A.;
H. L.A.; Hegel, G. W. F.; Hegel, G. W. F.; Hobbes,
Hobbes, Thomas; Kelsen, Thomas; Kant, Immanuel;
Hans; legal positivism; Locke, Kelsen, Hans; Locke, John;
John; natural right, the Mill, John Stuart; Plato;
philosophy of; Rousseau, Rousseau, Jean-Jacques; rule
Jean-Jacques; sovereignty, as a of law, the principles of the;
defining attribute of the sovereignty, as a defining
modern state; Spinoza, attribute of the modern state;
Benedict de Spinoza, Benedict de; Weber,
sovereignty, as a defining attribute Max
of the modern state statism
Finnis on, 221-2 Fullerand,66
Fuller on, 49-50 Hayek on, 133-4, 137-8
Hayek on, 127, 130-3, 237 Oakeshott on, 139-42
Oakeshott on, xii, xvi-xvii, 77-80 see also collectivism; socialism;
passim, 85-9, 118-19, 122-3, totalitarianism
141-2, 226-8 statute law, see under legislation, the
see also command theory of law; law of
legal positivism; Stevenson, Charles L., 33
legislation, the law of; see also emotive theory of ethics
sovereign, theories of the; Stoicism, 6-7
state, the Suarez, Francisco, 7
Soviet Union, xviii-xix Finnis on, 213
Finnis on, 215-17 Summers, Robert S., xvi
Fuller on, 65 Supreme Court of the United
Hayek on, 128 States
Oakeshott on, 89 Dworkin on, 191-3
Spinoza, Benedict de, 9, 21, 69, 108 see also Constitution of the United
Oakeshott on, 89, 214 States; New Right in
state, the America; Reagan, Ronald,
Dworkin on, 164--8 passim, 175, the Administration of
177,180-1,230,231
Finnis on,205, 214-15,221-4 Talmon, J. L., xvii, 46-7, 65, 168
passim, 239 see also totalitarianism
Fulleron,49-50,66,68-9 taxis, see under Hayek, F. A.
Hayek on, 127, 131-4, 137-8, 230, teleocracy
237 Hayek on, 133, 137-8
Nozick on, 115, 117-20 see also Oakeshott, Michael
Oakeshott on, 69, 71, 72, 73, teleology
79-91 passim, 98, 117-20, 123, teleological conception of nature:
141-2,214-15,226-8,236-7, Aristotle and, 5-6, 34, 36;
239 Kantand,36
278 Index

teleology (cont.) see also categorical imperative;


teleological justifications of the Kant, Immanuel; practical
moral authority of law and reason
the state: Aquinas and, 7, 24, universitas, see under Oakeshott,
28, 75-7, 111; Aristotle Michael
and, 5-6, 24, 28, 75, 111; unjust laws, the duty to comply
Dworkin on, 177-8; Dworkin with
and, 28, 166-8 passim; Finnis Finnis on, 208
and, 28, 205; Hayek and, 28; see also civil disobedience;
Nozick and, 120-1; obligation to obey the law,
Oakeshott and, 28, 120-1, the
124; Plato and, 28, 74-5, 111; utilitarianism, 12-14, 17, 25-6, 32-3,
Rawls and, 110-11, 120-1 108
see also purpose, as a concept Dworkin on, 145, 177-8, 182, 190
essential to the interpretation Dworkin and, xv, 2&-7, 69, 171,
of the law, and as a concept 174
essential to the justification Finnison, 196,202-5,212,238-9
of the moral authority of law Finnis and, xv, 2&-7, 69, 223
and the state Fuller on, 38-9, 45, 50-1, 68, 235
Thatcher, Margaret Fullerand,xv,2&-7
Dworkin on, 187 Hayek and, xv, 2&-7, 69, 133
Thomism, see under Aquinas, St Nozick on, 117
Thomas Oakeshott and, xv, 2&-7, 69, 71,
Tocqueville, Alexis de 121, 124
Oakeshott on, 237 Rawls on, 110-11
totalitarianism, xvii, 10, 22 see also Bentham, Jeremy;
Finnis and, xviii, 215 consequentialism, as a
Fuller and, 47, 65 method of practical
Hayek and, xili, 128, 215, 237 deliberation; Hume, David;
Oakeshott and, xiii, 89, 139, 215, legal positivism;
237 means-ends dualism; Mill,
see also collectivism John Stuart; practical reason
Truman, Harry S., xvii

unilateral nuclear disarmament Vietnam War, xviii


Finnis on, 219-21 Dworkin on, 183, 187, 233-4
see also nuclear deterrence voluntarism, 8
United States Constitution, see Dworkin and, 17s-80
under Constitution of the Finnis and, 197, 20&-7
United States Oakeshott on Hobbes in relation
universalizability, as a to, 77-9, 81
methodological principle Oakeshott and, xiii, xiii-xiv, 121,
governing legal reasoning, see 126, 178-9
under Hayek, F. A. see also command theory of law;
universalizability, as a formal Hobbes, Thomas; legal
principle of practical naturalism; legal positivism;
reason, 107 obligation to obey the law,
Finnis on, 203 the; social contract, theories
Rawls and, 109 of the
Index 279

VVebe~~ax, 16,17-18,152 Rawls on the institutions of


welfare state the, 100
Dworkin and, 27, 174, 175, 187-8, VVilliam of Ockham, 8
230 see also voluntarism
Finnis and, 214 VVilliams, Bernard, 92, 240
Fuller and, 65, 66 VVilliston, Samuel, 15, 17
Hayek on the institutions of Fuller and, 57
the, 138 see also case law method in
Oakeshott on, 90, 141 AJnericanlegaleducation

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