Professional Documents
Culture Documents
Charles Covell
M
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©Charles Covell1992
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Acknawledgements ix
Preface x
vii
viii Contents
6 Conclusion 226
ix
Preface
X
Preface xi
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.
1
2 The Defence of Natural Law
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
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
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
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
71
72 The Defence of Natural Law
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
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
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
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.
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
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
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.
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
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
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
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.
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
LON L. FULLER
Books
Artides
MICHAEL OAKESHO'IT
Books
F.A. HAYEK
Books
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
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
Articles
261
262 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
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