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In Defense of Classical Natural Law in Legal Theory: Why Unjust Law is No Law at All

Published online by Cambridge University Press:  20 July 2015

Philip Soper
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The classical view of natural law, often traced to Aquinas’ statement that “unjust law is no law at all,” finds few defenders today. Even those most sympathetic to natural law theories do not embrace the classical account, but, instead, convert Aquinas’ claim into a claim of political theory (unjust law does not obligate) or construct new “natural law” accounts about the connection between legal and moral principles in a theory of adjudication. In this paper, I defend the view that extreme injustice disqualifies otherwise valid official directives from counting as “law”. Indeed, I suggest that modern positivism’s characterization of the normative claims that typify legal systems leads inevitably to the conclusion that “law,” as a conceptual matter, must be understood by insiders who employ the term to admit moral limits on what can count as “law.” I proceed as follows. First, I begin with some preliminary clarifying comments about methodology and the precise issue under discussion. Second, I describe four leading theories about the nature of law and consider how central ideas in each theory can be seen to generate opposing ideas that lead in turn to opposing models of law. Third, I state briefly the affirmative case for thinking that the classical natural law view is correct. Fourth, I identify basic mistakes in current approaches to the question about the nature of law that help explain why modern positivism has overlooked the manner in which it leads logically to the classical natural law view. Finally, I add some brief remarks about why itmatters: what practical consequences follow from acknowledging that there are moral limits on what can count as law.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 20 , Issue 1 , January 2007 , pp. 201 - 223
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2007

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References

This article is developed from a paper presented in April, 2005 at the Natural Law Colloquium at Fordham University in New York. I am particularly grateful to the commentators on that occasion, Professor Charles Kelbley of the philosophy department and Professor Benjamin Zipursky of the law school, whose insightful comments led me to revise parts of the argument I develop here.

1. Aquinas, Thomas, Summa Theologica, trans. by Fathers of the English Dominican Province, 1952, at ques. 95; art. 2; ques. 96, art. 4Google Scholar.

2. Austin, John, The Province of Jurisprudence Determined, Library of Ideas ed. (New York: The Humanities Press, 1965) at 185 Google Scholar.

3. See King, M.L., “Letter from Birmingham Jail” in Why We Can’t Wait (New York: Harper & Row, 1963) 77 at 84Google Scholar.

4. See Gabriel, Manfred J., “Coming to Terms with the East German Border Guards Cases” (1999) 38 Colum. J. Transn’l L. 375 at 404Google Scholar.

5. See Fuller, Lon L., “Positivism and Fidelity to Law—A Reply to Professor Hart” (1958) 71 Harv. L.Rev. 630 at 651-55CrossRefGoogle Scholar.

6. See Finnis, John M., Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) at 363–66 Google Scholar. For further discussion, see Soper, Philip, “Legal Theory and the Problem of Definition” (1983) 50 U. Chicago L. Rev. 1170 at 1173-75CrossRefGoogle Scholar.

7. For an unflattering but, in my view, largely accurate description of some of these developments within recent positivist legal theory, see Dworkin, Ronald, “Thirty Years On” (2002) 115 Harv. L. Rev. 1655 CrossRefGoogle Scholar (reviewing Coleman, Jules, The Practice of Principle (Oxford: Oxford University Press, 2001)Google Scholar.

8. For a recent review of contemporary natural law theories see Murphy, Mark C., “Natural Law Jurisprudence” (2003) 9 Legal Theory 241 CrossRefGoogle Scholar. Murphy’s analysis confirms that there is little or no support for what he calls the “strong” natural law thesis, which is precisely the thesis I defend here.

9. See Soper, Philip, “Some Natural Confusions About Natural Law” (1992) 90 Michigan L. Rev. 2393 at 2394-96CrossRefGoogle Scholar; Himma, Kenneth Einar, “Natural Law” in The Internet Encyclopedia of Philosophy (http://www.iep.utm.edu/n/natlawhtm) (2006)Google Scholar.

10. See Perry, Stephen R., “Interpretation and Methodology in Legal Theory” in Marmor, Andrei, ed., Law and Interpretation (Oxford: Clarendon Press, 1995) 97 at 112-21Google Scholar; Postema, Gerald, “Jurisprudence as Practical Philosophy” (1998) 4 Legal Theory 329 CrossRefGoogle Scholar.

11. For further discussion, see Soper, Philip, The Ethics of Deference (Cambridge: Cambridge University Press, 2002) at 28–34 CrossRefGoogle Scholar.

12. See Kelsen, Hans, The Pure Theory of Law, trans. by Knight, Max (Berkeley: University of California Press, 1970) at 44 Google Scholar.

13. Hart, H.L.A., The Concept of Law, 2d ed. (Oxford: Clarendon Press, 1994) at 82 Google Scholar.

14. Among positivists, Matthew Kramer is one of the few to endorse a model of law largely indistinguishable from Austin’s as respect the normative claims that are essential to a legal system. See Kramer, Matthew, In Defense of Legal Positivism (Oxford: Oxford University Press, 1999), 103–05 Google Scholar; see also Schauer, Frederick, “Positivism Through Thick and Thin” in Bix, Brian, ed., Analyzing Law (Oxford: Clarendon Press, 1998) 65 at 73-74Google Scholar.

15. See Hart, H.L.A., Essays on Bentham (Oxford: Clarendon Press, 1982) at 151 Google Scholar.

16. Schauer, Frederick, “Positivism as Pariah” in George, Robert, ed., The Autonomy of Law (Oxford: Clarendon Press, 1996) 31 at 42Google Scholar. Schauer’s argument fails for reasons explored below in Part V (B). The argument makes the “identification” approach to determining the meaning of law (what are the tests for determining legal validity?) the critical one, ignoring the “functional approach” (once a directive is identified as “law,” what functions must it serve to qualify as a correct identification).

17. Even Hart seems to concede that if the question about the nature of law is approached entirely from the perspective of Holmes “bad man,” the classical positivist’s account of law may be sufficient. See The Concept of Law, supra note 13 at 40.

18. See Dworkin, Ronald, “A Reply” in Cohen, Marshall, ed., Ronald Dworkin and Contemporary Jurisprudence (Totawa, N.J.: Rowman and Allanheld, 1983) 247 at 258Google Scholar.

19. See Hart, supra note 15 at 149-53.

20. See Green, Leslie, The Authority of the State (Oxford: Clarendon Press, 1988, pbk 1990) at ch. 3Google Scholar.

21. See Hart, supra note 15 at 254-55.

22. See Ladenson, R., “In Defense of a Hobbesian Conception of Law” (1980) 9 Phil. & Pub. Affairs 134 at 137-40Google Scholar.

23. Hurd, Heidi M., “Justification and Excuse, Wrongdoing and Culpability” (1999) 74 Notre Dame L. Rev. 1551 at 1558Google Scholar.

24. Summa Theologica, supra note 1, ques. 96; art. 4.

25. Ronald|Dworkin, “A Reply”, supra note 18 at 259. Lon Fuller made a similar point much earlier and quite forcefully in his famous debate with Hart. See Fuller, supra note 5 at 655 (“So far as the courts are concerned matters certainly would not have been helped if, instead of saying, ‘This is not law,’ they had said ‘This is law but it is so evil we will refuse to apply it.’ Surely moral confusion reaches its height when a court refuses to apply something it admits to be law ….”).

26. This argument was forcefully made by Professor Zipursky in comments on an earlier version of this paper. I try here to indicate that it is precisely this difference that distinguishes my argument from the modern positivist’s: my argument requires assigning normativity as such to law, not simply intended normativity.

27. This mistake (seeing the normative claim as primarily or only a content-dependent one) appears more often in some of the critiques by certain opponents of positivism than it does in the positivist literature itself. These critiques suggest that because the law makes a moral judgment when it punishes, that fact alone shows a necessary connection between law and morality. (The suggestion is implied by the title of, and much of the argument in, Beyleveld, Deryck & Brownsword, Roger, Law as a Moral Judgment (London: Sweet and Maxwell, 1986)Google Scholar. For other examples, see Detmold, Michael J. The Unity of Law and Morality (London: Routledge & Kegan Paul, 1984) at 21–27 Google Scholar; Alexy, , “On Necessary Relations Between Law and Morality” (1989) 2 Ratio Juris 167 Google Scholar. The mistake also appears in Shiner, Roger, Norm and Nature: the Movements of Legal Thought (Oxford: Clarendon Press, 1992)CrossRefGoogle Scholar. For further discussion, see Soper, Philip, “Critical Notice: Legal Systems, Normative Systems, and the Paradoxes of Positivism” (1995) 8 Can. J. L. & Juris. 363 at 366-73CrossRefGoogle Scholar.) But no such inference is warranted. Content-dependent claims alone will indeed lead to a moral judgment, but they do so without showing a connection between law and morality. The problem in all of these accounts stems from a failure to appreciate the distinction between the implicit moral claims that underlie particular legal norms (which need only be content-dependent claims that the norm is “right,” “just,” and so on) from claims about the concept of law itself. The judge who sentences the defendant to death implicitly represents that the law believes the sentence is just; but that does not entail that the judge also represents the sentence as permissible “just because it is the law.” The latter claim is a claim about the concept of law itself; the former, though a moral judgment, can be modeled as a factual characteristic of legal systems without showing a connection between law and morality.

28. Soper, supra note 11 at 54.

29. See Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986) at 27 Google Scholar (claiming that Ladenson’s characterization of law’s normative claims as “justification rights” (which this article endorses, see supra note 22) is inconsistent with the language of duty and blame found in the law).

30. I agree in this respect with Mark Murphy’s suggestion that the functional approach to the definition of law should be combined with an approach that also emphasizes features that characteristically identify law. See Murphy, supra note 8 at 259 (criticizing Michael Moore’s reliance entirely on a functional approach).

31. See Dworkin, supra note 25.

32. It misses the point to insist that the “purpose” of law is not to justify coercion but only, for example, to guide and coordinate conduct. See Hart, The Concept of Law, supra note 13 at 248-49 (raising this objection to Dworkin’s similar suggestion that legal practice purports to be able to justify coercion through law). Whatever one thinks the main “purpose” of legal systems might be, the whole impetus behind modern positivism was the recognition that the means used to accomplish these purposes (whether it be coordinating or guiding conduct, or something else) is represented by those who accept the system as distinguishable from the means used by purely coercive systems. Whatever the purpose, law purports to accomplish it through sanctions that can be defended as morally permissible.

33. See Dworkin, Ronald, “Natural Law Revisited” (1982) 34 Univ. Fla. L. Rev. 165 at 178Google Scholar (in easy cases, the conventionalist and the natural law theory of law as integrity will reach the same result).

34. In the modern world the examples that might fit such a model of judicial activism are those “crimes against humanity” that are currently the basis for Nuremberg tribunals, trying persons guilty of committing such crimes regardless of whether the domestic law at the time “clearly” authorized the conduct in question. Applied to our own country, although we can all cite examples of laws in our history that were immoral and even eventually recognized to be horribly wrong, it is difficult to suggest (with the possible exception of slavery, see Cover, Robert, Justice Accused (New Haven, CT: Yale University Press, 1975))Google Scholar that a natural law theory would have led more quickly to their overturn.

35. See supra note 4.

36. See Hart, The Concept of Law, supra note 13 at 254.