1 Cf. John Rawls's perception of ‘the aggregative/distributive dichotomy’ as one of the chief challenges to social ethics: A Theory of Justice (Cambridge, MA: Harvard University Press 1971), 36-9; 44.

2 Jeffrie G. Murphy and Jules L. Coleman, The Philosophy of Law (Totowa, NJ: Rowman & Allanheld 1984), 18-19. In the midst of this passage, in a part that I have suppressed above, Murphy says, There are many rules in any society that are surely laws but are just as surely morally neutral - e.g., some law requiring that one have one's validated registration tag on the auto license plate prior to March 1. Aquinas sensibly admits that such rules are laws, but the degree to which the admission is compatible with the literal wording of his definition is unclear. Here Murphy has missed St. Thomas's distinction between laws that can be deduced from the principles of natural law and laws that are optional constructions (determinationes) for giving the principles effect (ST, 1a2ae, Q.95, 2). Suppose that there is a rule of natural law according to which people are to be held responsible for actions that pose dangers of injury to others; the responsibility of drivers for the operation of their vehicles will fall under this rule by deduction. Suppose further that license plates are an effective means of tracing drivers whose actions have been dangerous or injurious. Then the law about license plates will come in as an optional construction, a measure for bringing home to drivers their responsibilities. Alternatively, consider a rule of natural law about raising revenue for a legitimate government, options regarding particular taxes, and options for making sure that no one is able to evade paying his share of the particular tax on motor vehicles. In both cases, fixing a date may be looked upon as a further construction for making sure of current adherence to the rules.

3 Natural Law and Justice (Cambridge, MA: Harvard University Press 1987), 8. By ‘deontological’ Weinreb means a theory that holds, ‘What is properly called (positive) law satisfies [must satisfy] moral requirements.’ This description, in spite of his belief to the contrary, embraces as a special case traditional natural law theory, with its beliefs about human nature and the indispensable means of obtaining the benefits of society.

4 Ibid., 100

5 Weinreb, 8; 116-17. Cf. David A.J. Richards, The Moral Criticism of Law (Encino and Belmont, CA: Dickenson 1977), 31-6. By ‘methodological natural law theory’ Richards seems to mean, chiefly, keeping in view the moral arguments that are reflected in current laws and in judicial reasoning about them.

6 An example of the former sort of passage is ST, 1a2ae, Q.96, 4: ‘Human positive laws are either just or unjust. .. Laws are unjust in two ways.’ Murphy's pieced-together quotation from St. Thomas draws on both sorts of passages. See John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press 1980), 364-5 (cited by Deryk Beyleveld and Roger Brownsword, Law as Moral Judgment [London: Sweet & Maxwell1986], 112). Beyleveld and Brownsword spell out (13) various ways in which they think an ‘intelligible’ natural law theory could avoid making the traditional claim or slogan which so embarrasses Finnis, though they themselves seem to stand by it (12). Weinreb points out that though Finnis asserts that he knows of ‘no theory of natural law in which [the slogan]. or anything like it, is more than a subordinate theorem’ (351), Finnis all but adopts it himself, in agreement with St.Thomas and St.Augustine (Weinreb, 99, footnote; cf. Finnis, 23-4, 360-1). What is ‘a subordinate theorem'? One the truth of which is so obvious, given other theorems, that it is idle to set up a demonstration for it? Subordinate or not, if it is a theorem (which, given St.Thomas's remarks in defining law, above, it seems to be) it still has a firm place in natural law theory. Finnis devotes a complex and concentrated passage to showing how positive law derives from natural law (ibid., Chapter X, Section 7, 281-90). Can any ground for jettisoning the slogan be found in the fact that (in English) the quotation from St.Augustine in which it makes its appearance with St. Thomas says, ‘seems to be’ rather than categorically ‘is'? ‘A law that is not just seems to be no law at all.’ But in ST, 1a2ae, Q. 96, 4 (which Murphy draws upon) St. Thomas brings in the quotation to corroborate what he says for his own part just previously in the same sentence: ‘Such [unjust laws] are acts of violence rather than laws: which is categorical, as is his statement at the end of Q.92, 1: ‘A tyrannical law is not according to reason, and therefore is not straightforwardly a law, but rather a sort of crooked law (perversitas legis).’ Equally categorical is what he says in Q. 95, 2, where he makes the same quotation from St. Augustine, and goes on to say, ‘Hence a command has the force of law to the extent that it is just … If on any head [what is laid down by men] is at variance with natural law, it will not be law, but spoilt law (legis corruptio). He is bound to be categorical, given his definition of law, summed up in ST, la2ae, Q.90, 4: ‘Law is naught else than an ordinance of reason for the common good made by the authority who has care of the community and promulgated.’ Returning to the passage in which St.Augustine is quoted, one might wonder why after being so categorical himself, St. Thomas brings in the quotation at all. Is it because, though a weaker statement, less than categorical, it shows that a great authority was at least tending in the same direction? This is a question to which a decisive answer can be given by consulting the passage in the Latin original. There the quotation from Augustine reads, Lex esse non videtur quae justa non fuerit. Videtur (videor, the passive counterpart of video, to see) has a wider range than English ‘seems,’ which is normally used to signify at most tentative assent, pending corroboration, or to signify a contrast with ‘really is so.’ Videtur may mean ‘is seen'; hence esse … videtur, ‘is seen to be.’ The colloquial translation that best fits the passage and the context of St.Thomas's definition of law is ‘It is evident that there has not been a law that was not just.'

7 How, one might ask, can it be said to be a slogan invented by the positivists when it can be found endorsed by St. Thomas? See the first quotation from St. Thomas given above, in particular the statement cited from St.Augustine at the end of the quotation.

8 A Theory of Law (Cambridge, MA: Harvard University Press 1984), 51

9 Ibid.

10 Ibid.

11 Soper, 55. ‘The slight modification’ consists in requiring only ‘that legal directives aim at serving the common good, however wide of the mark they may fall.’ (Will the modification remain slight ‘however wide of the mark’ the directives may be?)

12 Not to speak of Bentham and Austin, who could find utilitarian grounds for most if not all of the content of M*, allies could include Hans Kelsen, the very prototype of a Basic Positivist. See his General Theory of Law and State, tr. Wedberg (Cambridge, MA: Harvard University Press 1945), 5, 50. At the end of the first, eponymous chapter of What Is Justice? (Berkeley: University of California Press 1971), Kelsen defends the moral seriousness of the ‘relativism’ to which he adheres (22) and then says, ‘The most important thing in my life, justice, is that social order under whose protection the search for truth can prosper. “My” justice, then, is the justice of freedom, the justice of peace, the justice of democracy - the justice of tolerance’ (24). Hobbes has shown us how at least a very large part of the content of natural law can be deduced from a first principle of seeking peace (Leviathan, Chapters 14, 15). One might expect just from the remarkably sympathetic account of natural law theory that H. L.A. Hart sets forth (in The Concept of Law [Oxford: Clarendon Press 1961]) before reaffirming the Positivist Criterion (205-6) that Hart would be an even readier ally than Kelsen.

13 Or here, for this purpose, to prescriptions that it stands by along with any other reasonable ethics.

14 For Weinreb the persistence of natural law is not only itself a puzzle; to his great credit, he senses that the persistence, puzzle and all, is ‘an indication that something more lies hidden beneath the jurisprudential debate’ (8). I shall solve at least in part Weinreb's puzzle about the persistence of ‘natural law'; I shall not solve it, however, by bringing to light what he has in mind as the ‘something more’ that ‘lies hidden beneath the jurisprudential debate.’ What he has in mind is a supposed ‘antinomy’ between freedom and causation, which he believes makes the realization of any comprehensive and consistent scheme of justice impossible (ibid., 10-11). This is not what I have in mind; I do not even find this plausible.

15 I regard the Postivist Criterion, taking its stand on enactment as the decisive consideration for the existence of a law, as leaving open the other topics mentioned. Even on the question whether laws are commands or rules, the Criterion leaves open, as a matter for supplementary consideration, which for purposes of my argument need not be gone into, whether ‘enactment’ issues only in rules that fit a sophisticated account of rules (in this and other respects the Criterion may be regarded as a minimal expression of positivist views). I think that enactment does issue only in such rules; but that is not the direction in which my argument will unfold the meaning of enactment. The Criterion, as it enters into my argument, certainly leaves open the question whether good or bad fortune is deserved as a matter of natural law by the people to whom the fortune, good or bad, falls. I shall not treat this topic either. Weinreb may be correct in thinking that an affirmative answer to this question can be found in Greek tragedy and connected by argument with Greek notions of natural law. However, if such an answer is, as Weinreb holds, an essential feature of what he calls the ‘ontological’ view of natural law (Weinreb, 1-2, 7, 10, 41-2, 125), which he ascribes to St. Thomas, among others, it is irrelevant to what I bring of traditional natural law theory into the present discussion.

16 (H3 ) implies that agents are not merely self-interested, since M* goes beyond self-interest to require commitment to a community and readiness to make sacrifices for its common good; but if M* is replaced by a set of rules that do no more than maximize the rational self-interest of agents, a hypothesis parallel to (H3 ) will emerge that will go a good part of the same distance. The two hypotheses will part company when questions arise about admitting new members to a given society who cannot pay their own way or ejecting old members who have ceased to be able to do so.

17 The ‘opinion leaders’ could be distributed through all social classes, and every human being might have immediate access to at least one of them - the picture given for contemporary politics in Elihu Katz and Paul F. Lazarsfeld, Personal Influence (Glencoe, IL: The Free Press 1955).

18 This is an example that Weinreb launches against the indeterminancy which he finds in Finnis's theory of natural law (Weinreb, 114).

19 In Monahan, Consent, Coercion and Limit (Kingston and Montreal: MeGillQueen's University Press 1987).

20 ST, 1a2ae,90, 3: ‘The chief and main concern of law properly so called is the plan for the common good. The planning is the business of the whole people or of their vicegerent’ (Blackfriars translation, Vol. 28 [London: Eyre & Spottiswoode 1963], 13).

21 Cf. Juergen Habermas's notion of ‘the ideal speech-situation,’ with its implications for agreement in ethics and politics. See, for example, Habermas, Legitimation Crisis, tr. Thomas McCarthy (Boston: Beacon Press 1975), 105, 108.

22 Kenneth J. Arrow, Social Choice and Individual Values, 2nd ed. (New York: Wiley 1963). Robert A. Dahl, A Preface to Democratic Theory (Chicago: University of Chicago Press 1956), 128, demonstrates that a candidate can win by taking a minority position on all the issues of a campaign, provided that the minorities who support him on each of these issues care more about having their way on each of them than they do about having their way on other issues.

23 ST, la2ae, Q.90, 3 again. Cf. 2a2ae, Q.l04, 6 & 7.

24 ST, 1a2ae, 96, 5, Reply to Objection 3

25 ST, 1a2ae, 96, 4

26 John Locke, Second Treatise on Civil Government, pars. 21, 131, 135, 210, 240

27 Cf. Hart, 24, with what he offers feature by feature as a theory of law that does not rest on force alone, or just with what is already present of these features in his intermediate summing up 76.

28 Have we got any further, Hart might be asked, when he brings up oppressive ruling coalitions (Hart, 196), from a gunman than to a gang of gunmen?

29 What Hart says (196) about coalitions keeping for themselves ‘the minimal protections and benefits’ of law and accepted morality is not perfectly consistent with what he says earlier (167) about some rules ‘obviously required for social life’ conformity with which must be ‘a matter of course among any group of individuals, living in close proximity to each other’ if we are not to doubt ‘the description of the group as a society’ and be ‘certain that it could not endure for long.'

30 I came upon this pithy translation from St. Thomas on a church bulletin board, early one sunny morning when I was young, walking across the Green in New Haven.

31 Weinreb, 105-7. He goes on to say, 108, ‘Over time, law and morality are likely to converge, by a gradual interactive process or, occasionally, by a more dramatic confrontation and elimination of dissimilarities. A person who subscribes generally to both is likely to find that his legal obligations are reinforced by their conformity to what he and others in the community regard as their moral (and social) obligations. None of that supports a distinct natural law theory or, indeed, asserts anything with which legal positivists disagree.'

32 On core rules, see David Braybrooke, Bryson Brown, and Peter K. Schotch, Logic on the Track of Social Change (forthcoming), Introduction, toward the end. Will the shared subset be empty, or will so little be left for the basic prohibition to do even with a shared subset that is not empty, given all the occasions for action that fall under one or another head of exception not universally shared, that the core rule hardly ever operates? One will just have to look to see.

33 See David Braybrooke, ‘A Public Goods Approach to the Theory of the General Will,’ in J.M. Porter and Richard Vernon, eds., Unity, Plurality & Politics (London: Croom Helm 1986), 75-92; and David Braybrooke and Arthur P. Monahan, ‘The Common Good,’ in Lawrence Becker, ed., Encyclopedia of Ethics (New York: Garland forthcoming).

34 Cited by Weinreb, 83. Ironically, Rousseau may also be regarded, on the basis of the analysis of the common good implicit in the theory of the general will, as the last great creative theorist of natural law. Weinreb's citation is from the Geneva ms., a preliminary draft of Du contrat social; perhaps Weinreb should have given more weight to Rousseau's dropping the charge in the final text.

35 In outline, I gave the argument of this paper in a talk at the Faculty of Law, Queen's University, with a discussion following, from which I trust I benefitted. An earlier version of the paper, once written up, elicited spirited and helpful comments from the participants in a departmental colloquium at Dalhousie; I wish to thank especially Duncan Mackintosh, for support, and Robert Martin, for stout ordinary language objections. Two anonymous referees for the Canadian Journal of Philosophy supplied me with a good deal of incitement, some useful comments, and even more useful bibliographical references; I thank them, too. An intermediately revised version was given to the Legal Theory Workshop of the Faculty of Law, University of Toronto; and in this connection I received helpful comments from a number of people, for which I am grateful. Above all, however, I must thank David Copp, who went far beyond the normal obligations of an editor to provide me with a critique both thorough and always to the point - as well as patient general encouragement.