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Natural Law: Definition and Application

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Natural law is a theory that says all humans inherit—perhaps through a divine presence—a universal set of moral rules that govern human conduct.

Key Takeaways: Natural Law

• Natural law theory holds that all human conduct is governed by an inherited set of universal moral rules. These rules apply to everyone, everywhere, in the same way.
• As a philosophy, natural law deals with moral questions of “right vs. wrong,” and assumes that all people want to live “good and innocent” lives.
• Natural law is the opposite of “man-made” or “positive” law enacted by courts or governments.
• Under natural law, taking another life is forbidden, no matter the circumstances involved, including self-defense.

Natural law exists independently of regular or “positive” laws—laws enacted by courts or governments. Historically, the philosophy of natural law has dealt with the timeless question of “right vs. wrong” in determining the proper human behavior. First referred to in the Bible, the concept of natural law was later addressed by the ancient Greek philosopher Aristotle and Roman philosopher Cicero . 

What Is Natural Law?

Natural law is a philosophy based on the idea that everyone in a given society shares the same idea of what constitutes “right” and “wrong.” Further, natural law assumes that all people want to live “good and innocent” lives. Thus, natural law can also be thought of as the basis of “morality.” 

Natural law is the opposite of “man-made” or “positive” law. While positive law may be inspired by natural law, natural law may not be inspired by positive law. For example, laws against impaired driving are positive laws inspired by natural laws.

Unlike laws enacted by governments to address specific needs or behaviors, natural law is universal, applying to everyone, everywhere, in the same way. For example, natural law assumes that everyone believes killing another person is wrong and that punishment for killing another person is right. 

Natural Law and Self Defense

In regular law, the concept of self-defense is often used as justification for killing an aggressor. Under natural law, however, self-defense has no place. Taking another life is forbidden under natural law, no matter the circumstances involved. Even in the case of an armed person breaking into another person’s home, natural law still forbids the homeowner from killing that person in self-defense. In this way, natural law differs from government-enacted self-defense laws like so-called “ Castle Doctrine ” laws. 

Natural Rights vs. Human Rights

Integral to the theory of natural law, natural rights are rights endowed by birth and not dependent on the laws or customs of any particular culture or government. As stated in the United States Declaration of Independence , for example, the natural rights mentioned are “Life, Liberty, and the Pursuit of Happiness.” In this manner, natural rights are considered universal and inalienable, meaning they cannot be repealed by human laws.

Human rights, in contrast, are rights endowed by society, such as the right to live in safe dwellings in safe communities, the right to healthy food and water, and the right to receive healthcare. In many modern countries, citizens believe the government should help provide these basic needs to people who have difficulty obtaining them on their own. In mainly socialist societies , citizens believe the government should provide such needs to all people, regardless of their ability to obtain them.

Natural Law in the US Legal System

The American legal system is based on the theory of natural law holding that the main goal of all people is to live a “good, peaceful, and happy” life, and that circumstances preventing them from doing so are “immoral” and should be eliminated. In this context, natural law, human rights, and morality are inseparably intertwined in the American legal system. 

Natural law theorists contend that laws created by the government should be motivated by morality. In asking the government to enact laws, the people strive to enforce their collective concept of what is right and wrong. For example, the Civil Rights Act of 1964 was enacted to right what the people considered to be a moral wrong—racial discrimination. Similarly, the peoples’ view of enslavement as being a denial of human rights led to ratification of the Fourteenth Amendment in 1868. 

Natural Law in the Foundations of American Justice

Governments do not grant natural rights. Instead, through covenants like the American Declaration of Independence and the U.S. Constitution , governments create a legal framework under which the people are permitted to exercise their natural rights. In return, people are expected to live according to that framework.

In his 1991 Senate confirmation hearing, U.S. Supreme Court Justice Clarence Thomas expressed the widely shared belief that the Supreme Court should refer to natural law in interpreting the Constitution. “We look at natural law beliefs of the Founders as a background to our Constitution,” he stated. 

Among the Founders who inspired Justice Thomas in considering natural law to be an integral part of the American justice system, Thomas Jefferson referred to it when he wrote in the first paragraph of the Declaration of Independence:

“When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

Jefferson then reinforced the concept that governments cannot deny rights granted by natural law in the famous phrase: 

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” 

Natural Law in Practice: Hobby Lobby vs. Obamacare

Deeply rooted in the Bible, natural law theory often influences actual legal cases involving religion. An example can be found in the 2014 case of Burwell v. Hobby Lobby Stores , in which the U.S. Supreme Court ruled that for-profit companies are not legally obligated to provide employee health care insurance that covers expenses for services that go against their religious beliefs.

The Patient Protection and Affordable Care Act of 2010 —better known as “Obamacare”—requires employer-provided group health care plans to cover certain types of preventative care, including FDA-approved contraceptive methods. This requirement conflicted with the religious beliefs of the Green family, owners of Hobby Lobby Stores, Inc., a nationwide chain of arts and crafts stores. The Green family had organized Hobby Lobby around their Christian principles and had repeatedly stated their desire to operate the business according to Biblical doctrine, including the belief that any use of contraception is immoral. 

In 2012, the Greens sued the U.S. Department of Health and Human Services, claiming that the Affordable Care Act’s requirement that employment-based group health care plans cover contraception violated the Free Exercise of Religion Clause of the First Amendment and the 1993 Religious Freedom Restoration Act (RFRA), that “ensures that interests in religious freedom are protected.” Under the Affordable Care Act, Hobby Lobby faced significant fines if its employee health care plan failed to pay for contraceptive services.

In considering the case, the Supreme Court was asked to decide if the RFRA allowed closely held, for-profit companies to refuse to provide its employees with health insurance coverage for contraception based on the religious objections of the company’s owners. 

In a 5-4 decision, the Supreme Court held that by forcing religion-based companies to fund what they consider the immoral act of abortion, the Affordable Care Act placed an unconstitutionally “substantial burden” on those companies. The court further ruled that an existing provision in the Affordable Care Act exempting non-profit religious organizations from providing contraception coverage should also apply to for-profit corporations such as Hobby Lobby.

The landmark Hobby Lobby decision marked the first time the Supreme Court had recognized and upheld a for-profit corporation’s natural law claim of protection based on a religious belief.

Sources and Further Reference

• “ Natural Law .” Internet Encyclopedia of Philosophy
• “ The Natural Law Tradition in Ethics .” Stanford Encyclopedia of Philosophy (2002-2019)
• “Hearing of the Senate Judiciary Committee on the Nomination of Clarence Thomas to the Supreme Court. Part 1 , Part 2 , Part 3 , Part 4 .” U.S. Government Publishing Office.
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• Introduction

Early formulations of the concept of natural law

• Natural law in the Enlightenment and the modern era

• Why is Thomas Hobbes important?
• What was Thomas Hobbes’s childhood like?

natural law

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• Corporate Finance Institute - Natural Law
• NDLScholarship - Natural Law Theory: Its past and its present
• Free Speech Center at Middle Tennessee State University - Natural Law
• Stanford Encyclopedia of Philosophy - Natural Law Theories
• Texas A&M University-Corpus Christi - Philosophy - Natural Law
• Mises Institute - Introduction to Natural Law
• University of Michigan - The Encyclopedia of Diderot and d'Alembert - Law of nature, or Natural law
• Humanities LibreTexts - Natural Law Theory
• National Center for Biotechnology Information - PubMed Central - Value Comparability in Natural Law Ethics: A Defense
• Internet Encyclopedia of Philosophy - Natural Law
• Academia - Natural Law
• Table Of Contents

Natural Law

Definition of natural law, what is natural law.

To solve an ethical dilemma using natural law, the basic belief that everyone is naturally entitled to live their own lives must be considered and respected. From there, natural law theorists determine what an innocent life is, and what elements comprise the life of an “unjust aggressor.”

Natural Law in the American Legal System

Natural law in the American legal system is defined as a legal theory that considers law and morality to be so connected to one another that they are practically the same. Since natural law in the American legal system is focused on morality, as actions can be defined as both “good” and “bad,” natural law theorists believe that the laws that humans create are motivated by morality, as opposed to being defined by an authority figure like a monarch, a dictator, or a governmental organization.

Natural Rights vs. Human Rights

It may be simple semantics, but the adjective before the word “rights,” whether that adjective is “human” or “natural,” can make a difference in how the term is defined. When asking the question of natural rights vs. human rights, consider that natural rights are those endowed by birth and are to be protected by the government. These rights include life, liberty, and property, among others.

How the Constitution Addresses Natural and Human Rights

Natural rights, by their very nature, do not change with time. Everyone everywhere has always been endowed with the same right to “life, liberty, and the pursuit of happiness.” By contrast, human rights are subject to change and often do, with new human rights being recognized, defined, and promoted by governmental organizations.

Natural Law Examples in Religious Beliefs

The Affordable Care Act, colloquially referred to as “Obamacare,” derives its authority to mandate options for contraception and sterilization through natural law, seeking to provide healthcare options that are for the good of the people in general. No individuals covered by these insurance plans are required to utilize any of the services. When the case was heard by the appellate court, Judge Janice Rogers Brown ruled that the Freshway companies are not “people” as defined by the Constitution and the federal Religious Freedom Restoration Act (i.e. individual human beings), so they are not able to exercise a religious belief and cannot claim that the mandate offends “them.”

Natural Law and the Declaration of Independence

“When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

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Natural Law, Liberalism, and Morality: Contemporary Essays

McCormick Professor of Jurisprudence

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This book brings together leading defenders of natural law and liberalism for a series of frank and lively exchanges touching upon critical issues of contemporary moral and political theory. The book is an example of the fruitful engagement of traditions of thought about fundamental matters of ethics and justice.

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A Level Philosophy & Religious Studies

Natural Law ethics

Introduction.

Natural law ethics is based on Aristotelian teleology; the idea that everything has a nature which directs it towards its good end goal. Aquinas Christianised this concept. The Christian God designed everything with a telos according to his omnibenevolent plan for creation.

Christian ethics is most associated with the commands and precepts found in the Bible. Aquinas’ contribution was to argue that telos is also a source of Christian moral principles. Human nature has the God given ability to reason which comes with the ability both to intuitively know primary moral precepts and to apply them to moral situations and actions. Following this ‘natural law’ is thus also an essential element of living a moral life.

There is biblical evidence for this view from St Paul in Romans chapter 2:

“when Gentiles, who do not have the law, do by nature things required by the law … They show that the requirements of the law are written on their hearts, their consciences also bearing witness, and their thoughts sometimes accusing them and at other times even defending them.” (Romans 2:14-15).

Gentiles are those who are not Jewish, nor part of the newly-emerging Christianity when St Paul was writing. The ‘law’ refers to the religious law of the Hebrew bible or old testament. Paul clearly indicates that human beings have another source of morality. Not exactly the law itself, but the ‘requirements of the law’. This is ‘written on their hearts’ and found in their conscience. Aquinas thinks all humans are born with God-given reason, which involves the innate ability to intuitively know the moral precepts of natural law.

The ancient Greek idea of telos refers to a thing’s behavioural inclination towards its good end due to its nature.

The nature of a thing determines the behaviours that are ‘natural’ to it. An acorn naturally grows into an oak tree, because of the way its inherent nature is constituted. Birds fly south in winter, because of their natural instincts.

Natural law ethics claims that human beings are also born with a God-designed nature, including the power of reason. Reason intuitively knows certain things to be good or bad, thereby inclining humans towards following God’s morality. So, humans have a telos, a natural inclination towards our good end

“the light of reason is placed by nature in every man, to guide him in his acts towards his end”. – Aquinas.

Animals and natural objects have their behaviour determined by their telos. Humans, however, have free will. We are capable of choosing whether to follow God’s moral law or not. If we do, we will be orientating ourselves towards our good end of glorifying God by following his moral law. This achieves eudaimonia (flourishing), another Aristotelian concept that inspired Aquinas.

Like Aristotle, Aquinas thought eudaimonia can be achieved at the societal as well as the individual level. God has designed the telos of human beings so that a harmony of their individual interests can be achieved if they follow the natural law.

A person or society which fails to orient itself towards the glory of God will not flourish, but degenerate. This doctrine energised much of the preoccupation of Catholics with the moral fabric of society and their opposition to changes they feared would lead to moral degeneration.

So, on the natural law view, ethics is about following the natural law within our nature.

The four tiers of law

The ultimate source of moral goodness and thus law is God’s omnibenevolent nature, which created and ordered the universe with a divine plan, known as the eternal law. However, that is beyond our understanding. We only have access to lesser laws that derive from the eternal law.

The eternal Law . God’s plan, built into the nature of everything which exists, according to his omnibenevolent nature.

The divine law – God’s revelation to humans in the Bible.

The natural law – The moral law God created in human nature, discoverable by human reason.  

Human law – The laws humans make which should be based on the natural and divine law. Human law gains its authority by deriving from the natural and divine law which themselves ultimately derive authority from God’s nature.

“Participation of the eternal law in the rational creature is called the natural law”. – Aquinas

The Primary Precepts & Synderesis

Reason is a power of the human soul. Synderesis is the habit or ability of reason to discover foundational ‘first principles’ of God’s natural moral law.

“the first practical principles … [belong to] a special natural habit … which we call “synderesis” … is said to incite to good, and to murmur at evil, inasmuch as through first principles we proceed to discover, and judge of what we have discovered.” – Aquinas

The first principle synderesis tells us is called the synderesis rule: that the good is what all things seek as their end/goal (telos). This means that human nature has an innate orientation to the good.

“This therefore is the principle of law: that good must be done and evil avoided. ” – Aquinas

Further to this, through synderesis we learn the primary precepts: worship God, live in an orderly society, reproduce, educate, protect and preserve human life and defend the innocent. These primary precepts are the articulation of the orientations in our nature toward the good; the natural inclinations of our God-designed human nature, put into the form of ethical principles by human reason. Simply having reason allows a being to intuitively know these precepts. We are all born with the ability to know them.

Secondary precepts & conscientia

“there belongs to the natural law, first, certain most general precepts, that are known to all; and secondly, certain secondary and more detailed precepts, which are, as it were, conclusions following closely from first principles.” – Aquinas.

Conscientia is the ability of reason to apply he primary precepts to situations or types of actions. The judgement we then acquire is a secondary precept. E.g euthanasia: the primary precepts don’t say anything about euthanasia exactly, but we can use our reason to apply the primary precepts to euthanasia, and realise that it goes against the primary precept of protecting and preserving human life. Arguably it even disrupts the functioning of society too. Therefore, we can conclude the secondary precept that euthanasia is wrong.

Interior & exterior acts

A physical action itself is an exterior act because it occurs outside of our mind. Our intention; what we deliberately choose to do, is the interior act because it occurs inside our mind.

The point of natural law ethics is to figure out what fulfils the telos of our nature and act on that. By doing so, we glorify God. This cannot be done without intending to do it. A good exterior act without a good interior act does not glorify God because it is not done with the intention of fulfilling the God-given goal/telos of our nature.

The act of giving money to charity is an example of a good exterior act, but is only morally good when combined with the right kind of intention, which would be an interior act. If the intention was only to be thought of as a good person, which is not the right kind of intention, then the action is not truly morally good.

Whether telos exists

It is a strength of telos-based ethics that they are empirical, i.e., based on evidence. Aristotle observed that everything has a nature which inclines it towards a certain goal which he and Aquinas called its telos. It is a biological fact that certain behaviours cause an organism to flourish. Telos thus seems an empirically valid concept.

Weakness: Modern science’s rejection of final causation. Francis Bacon, called the father of empiricism, argued that only material and efficient causation were valid scientific concepts, not formal and final causation. The idea of telos is unscientific.

Aquinas and Aristotle claim every being has a unique essence which gives it a particular end/purpose. The issue is, modern science tells us that things are merely atoms moving in fields of force – i.e., material and efficient causation. The idea that entities have an ‘essence’ and thus a telos is unscientific. Physicist Sean Carroll concludes that purpose is not built into the “architecture” of the universe.

All supposed telos of a thing can be reduced to non-teleological concepts regarding its material structure and forces operating on it (material & efficient causation). There is no basis for grounding telos in God like Aquinas did, or as a required explanation of change like Aristotle did. For example, Aristotle would regard the telos of a seed as growing into a tree/bush. However, we now understand that change as resulting from the seed’s material structure which was itself caused by evolution, not anything like telos. Similarly, if there is anything in human nature which orients us towards certain behaviours, it is only because evolution programmed them into us because they happened to enable survival in our environment, not because of telos. So, Modern science can explain the world without telos. Telos is an unnecessary explanation.

Evaluation defending telos:

Polkinghorne, a modern Christian philosopher and physicist, argued that science is limited and cannot answer all questions. It can tell us the what but not the why . Science can tell us what the universe is like, but it cannot tell us why it is this way, nor why it exists. It cannot answer questions about purpose.

Polkinghorne’s argument is successful because science is limited. It cannot rule out something like a prime mover or God which could provide some kind of telos. If purpose existed, science would not be able to discover it. So, science cannot be used to dismiss the existence of purpose.

Evaluation critiquing telos:

Dawkins responds that it’s not valid to simply assume that there actually is a ‘why’. He makes an analogy: ‘what is the color of jealousy?’ That question is assuming that jealousy has a color. Similarly, just because we can ask why we and the universe exist, that doesn’t mean there actually is a purpose for it.

Dawkins’ argument is successful because it makes use of the burden of proof. Those who claim purpose exists have the burden of providing a reason to think it exists. There is no scientific basis for thinking anything other than material and efficient causation exists. Furthermore, scientists may one day actually explain ‘why’ the universe exists, but even if they don’t, that doesn’t justify a non-scientific explanation of purpose such as telos.

Universal human nature & moral dis/agreement

A strength of Natural law is that it is based on universal human nature. The primary precepts are found in the morality of all societies. For example, not killing for no reason and rules about stealing are universal. Valuing reproduction and education are also universal. Moral thinkers from different cultures came up with similar moral prescriptions such as the golden rule; to treat others as you would like to be treated, which can be found in ancient Chinese Philosophy, Hinduism, Judaism and Christianity. This suggests that moral views are influenced by a universal human moral nature. This is good evidence that we are all born with a moral orientation towards the good (telos), which is the foundation of Aquinas’ theory.

Weakness: If all humans were really born with the ability to know the primary precepts, we should expect to find more moral agreement than we do. In fact, we find vastly different moral beliefs. Furthermore, the disagreement is not random but tends to fall along cultural lines. This suggests that it is actually social conditioning which causes our moral views, not a supposed natural law in human nature. This has been argued by psychologists like Freud. Fletcher argues this shows there is not an innate God-given ability of reason to discover a natural law. He concludes that ethics must be based on faith, not reason (Fletcher’s positivism).

Evaluation defending Aquinas:

Aquinas’ claim is merely that human nature contains an orientation towards the good, it doesn’t involve a commitment to humans actually doing more good than evil, nor to incredibly evil acts or cultures occurring infrequently. Aquinas acknowledges that there are many reasons we might fail to do good despite having an orientation towards it. These include original sin, mistakes in conscientia, lacking virtue and a corrupt culture. So, the fact that there is a core set of moral views found cross-culturally shows his theory is correct. 

Evaluation critiquing Aquinas:

Furthermore, cross-cultural morality might result merely from the basic requirement of a society to function. If anyone could kill or steal from anyone else for no reason whenever they wanted, it’s hard to see how a society could exist. That might create an existential pressure which influences the moral thinkers of a society, yielding prescriptions such as the golden rule. Cross-cultural ethics therefore has a practical reality as its basis, not God.

Alternatively, some of the cross-cultural similarities in moral codes might also have resulted from a biologically evolved moral sense rather than one designed by a God, which would mean they are not related to morality or telos at all.

Aquinas’ Natural theology vs Augustine & Karl Barth

A strength of Aquinas’ ethics is its basis in what seems like a realistic and balanced view of human nature as containing both good (reason & telos) but also bad (original sin). Natural law adds an engagement with autonomy to Christian ethics. Sola scriptura protestants like Calvin regard humans as mere passive receptacles for a set of biblical commands. However, Aquinas argues that God presumably gave humans reason so that they may use it.

Natural theology is the view that human reason is capable of knowing God, in this case God’s moral law. Aquinas defends this by first accepting that original sin destroyed original righteousness, meaning perfect rational self-control. However, it did not destroy our reason itself and its accompanying telos inclining us towards the good.

Only rational beings can sin. It makes no sense to say that animals could sin. Original sin made us sinners, but human nature was not reduced to the level of animals. We still have the ability to reason. Furthermore, Aquinas diverges from Augustine, claiming that concupiscence can sometimes be natural to humans, in those cases where our passions are governed by our reason. So, a comprehensive approach to Christian morality must include the use of reason to discover and act on the telos of our nature.

Weakness: Natural theology places a dangerous overreliance on human reason. Karl Barth was influenced by Augustine, who claimed that after the Fall our ability to reason become corrupted by original sin.   Barth’s argument is that is therefore dangerous to rely on human reason to know anything of God, including God’s morality.   “the finite has no capacity for the infinite” – Karl Barth.   Our finite minds cannot grasp God’s infinite being. Whatever humans discover through reason is not divine, so to think it is divine is idolatry – believing earthly things are God. Idolatry can lead to worship of nations and even to movements like the Nazis. After the corruption of the fall, human reason cannot reach God or God’s morality. That is not our telos. Only faith in God’s revelation in the bible is valid.

Final judgement defending Aquinas:   Barth’s argument fails because it does not address Aquinas’ point that our reason is not always corrupted and original sin has not destroyed our natural orientation towards the good. Original sin can at most diminish our inclination towards goodness by creating a habit of acting against it. Sometimes, with God’s grace, our reason can discover knowledge of God’s existence and natural moral law. So, natural moral law and natural theology is valid.

Arguably Aquinas has a balanced and realistic view, that our nature contains both good and bad and it is up to us to choose rightly.

Final judgement critiquing Aquinas: Barth still seems correct that being corrupted by original sin makes our reasoning about God’s existence and morality also corrupted. Even if there is a natural law, we are unable to discover it reliably. The bad in our nature unfortunately means we cannot rely on the good. Whatever a weak and misled conscience discovers is too unreliable.

Humanity’s belief that it has the ability to know anything of God is the same arrogance that led Adam and Eve to disobey God. Humanity believing that it has the power to figure out right and wrong is what led to the arrogant certainty of the Nazis in their own superiority. This arrogance of natural theology is evidence of a human inability to be humble enough to solely rely on faith.

Whether Religious & Natural law ethics is outdated

A strength of Natural law ethics is its availability to everyone because all humans are born with the ability to know and apply the primary precepts. Regarding those who do not belong to Abrahamic religion the Bible says:   “Gentiles, who do not have the law, do by nature what the law requires … God’s law is written in their hearts, for their own conscience and thoughts either accuse them or tell them they are doing right” (Romans 2:14-15).   So, it is possible to follow the natural law even if you are not Christian and/or have no access to the divine law (Bible).

Weakness: Secularists often argue that biblical morality (divine law) is primitive and barbarous, showing it comes from ancient human minds, not God. J. S. Mill calls the Old Testament “Barbarous, and intended only for a barbarous people”. Freud similarly argued that religious morality reflected the “ignorant childhood days of the human race”.   Aquinas’ Natural law ethics is criticised as outdated for the same reason. Medieval society was more chaotic. Strict absolutist ethical principles were needed to prevent society from falling apart. This could explain the primary precepts. For example, it was once useful to restrict sexual behaviour to marriage, because of how economically fatal single motherhood tended to be. It was useful to simply ban all killing, because killing was much more common. It was useful to require having lots of children, because most children died.   The issue clearly is that all of these socio-economic conditions have changed. So, the primary precepts are no longer useful. Society can now afford to gradually relax the inflexibility of its rules without social order being threatened.

Conservative Catholics often argue that natural law is not outdated because it serves an important function without which society flourishes less. They argue that secular liberal western culture is ethically retrograde because of its abandonment of traditional moral principles like the primary precepts. This shows that we really do need to follow God’s natural law in order to flourish.

Marriages are fewer and less successful. Mental illness increases. Rates of etcetc

People are no longer united by an ethic of devoting our lives to something greater than ourselves. Self-interest and materialistic consumerism is all modern society has to offer by way of meaning and purpose.

“[excluding] God, religion and virtue from public life leads ultimately to a truncated vision of man and of society and thus to a ‘reductive vision of the person and his destiny’”. – Pope Benedict XIV.

Here, Benedict XVI references an encyclical called “Caritas in Veritate”, where he argued that while there is indeed religious fanaticism which runs against religious freedom, the promotion of atheism can deprive people of “spiritual and human resources”. The atheist worldview is that we are a “lost atom in a random universe”, in which case we can grow and evolve, but not really develop morally.

“ideological rejection of God and an atheism of indifference, oblivious to the Creator and at risk of becoming equally oblivious to human values, constitute some of the chief obstacles to development today. A humanism which excludes God is an inhuman humanism. Only a humanism open to the Absolute can guide us in the promotion and building of forms of social and civic life — structures, institutions, culture and ethos — without exposing us to the risk of becoming ensnared by the fashions of the moment.” – Pope Benedict XIV.

So, religious and natural law ethics is not outdated but is a vital societal anchor for morality, meaning and purpose.

Natural law ethics is outdated because Aquinas’ theory was actually a reaction to his socio-economic context and since that has changed, Natural law is no longer relevant.

Aquinas thought that he discovered the primary precepts through human reason, as God designed. However, it’s a simpler explanation that Aquinas was simply intuiting what was good for people in his socio-economic condition. The idea that the resulting principles actually came from God was only in his imagination.

The great strength of religion as a form of social organisation is also its greatest weakness. By telling people that its ethical precepts (such as the primary precepts or sanctity of life) come from God it creates a strong motivation to follow them. Yet, because those precepts are imagined to come from an eternal being, they become inflexible and painstakingly difficult to progress. This makes them increasingly outdated.

The double effect

A single action can have two effects, one in accordance with the primary precepts and one in violation of them. Aquinas claims that such actions can be justified the good effect is intended while the bad effect is “beside the intention”. This is because being a good person involves developing the kind of virtuous character which acts with the intention of following God’s natural law.

Aquinas illustrated this with killing in self-defence. There are two effects; the saving of a life and the killing of a life. Killing someone, which clearly violates the primary precept of preserving human life, can be justified so long as it is an effect which is a secondary effect beside the intention of an action whose other effect was intended and was in accordance with the primary precepts.

There are four generally accepted conditions in modern Catholicism for an action to be justified by the double effect:

The intentionality condition. The good effect must be intended and the bad effect must be ‘besides the intention’. Aquinas illustrated the double effect with the example of killing someone in self-defence. So long as you intended to save your own life, then it is morally permissible to kill someone in self-defence. The bad effect is ‘besides the intention’. 

The proportionality condition. The good effect must be at least equivalent to the bad effect. Saving your life is equivalent to ending the life of the attacker. You can’t use more force than is necessary to save your life – there must be proportionality there too. 

The means-end condition. The bad effect and the good effect must both be brought about immediately – at the same time. Otherwise, the person would be using a bad effect as a means to bring about a good effect – which is not permissible.

The double effect only applies to actions which have two effects – one good, one bad – where both effects are brought about immediately.

The nature of the act condition. The action must be either morally good, indifferent or neutral. Acts such as lying or killing an innocent person can never be justifiable. An attacker would not count as an innocent person.

Whether the double effect is unbiblical

A strength of the double effect is that it helps to resolve seemingly disparate biblical themes. Jesus’ commands were not merely about following certain rules, but also about having the right moral intention and virtue (E.g. sermon on the mount). The double effect provides important clarity to Christian ethics by showing the relation between the important moral elements of intention and following the moral law. Good intention is important, not to the degree of justifying pure violations of the law, but when involved in an action that has a good effect it can justify permitting a bad side effect. 

Weakness: the double effect is unbiblical. Some theologians reject the double effect as unbiblical because God’s commandments are presented as absolute and not dependent on someone’s intention. For those theologians, the distinction between intended effects of actions and merely foreseen effects “beside” the intention has no morally relevant significance. It’s not that intention has no relevance in traditional Christian ethics. Most theologians accept that people are not immoral for consequences of their actions which they could not have foreseen which violate God’s commands. For example if you decide to drive your car at the time a drunk person happened to be out and you ran them over, that would not be considered your fault even through it was an effect of your action. However if you could foresee a bad consequence, the fact that it was a secondary effect beside the effect you did intend doesn’t justify it for theologians who take this view.

Evaluation defending Natural law:

This criticism is unsuccessful because Natural law is different to the Bible. The Bible might be inflexible, but that is the divine law. The natural law in our nature is more flexible because it is in the form of very general precepts which require application and the telos of the natural law is glorifying God, which requires that it be our intention to glorify God – thus showing how intention is relevant.

Evaluation criticising Natural law:

This weakness is successful because it shows natural law is trying to add flexibility to inflexible biblical law – e.g. thou shalt not kill. Self-defence, passive euthanasia, even perhaps abortion could be justified by the double effect. The natural and divine law do not cover separate areas but cross-over and therefore conflict on this point of inflexibility. Christians must choose the Bible over Natural law.

Proportionalism & the double effect

A strength of Natural law is its flexibility due to the doctrine of the double effect.

This has been used by modern Catholics to allow, for example, passive euthanasia, abortion to save the life of the mother (though this is complex and controversial in catholicism), and contraception to prevent the spread of AIDS.  

Weakness: B. Hoose’s proportionalism

Hoose developed natural law into what he claimed was a more flexible and coherent form called proportionalism.

Proportionalists agree about following the primary precepts, but argue it is acceptable to go against them if you have a proportionate reason for doing so – i.e., if your action will bring about more good than bad.

The nature of the act condition is invalid because what matters is the proportion of value to disvalue produced by your action. The means-end condition is invalid because what matters is the ultimate value/disvalue proportion.

For proportionalists, the only valid condition in the double effect is proportionality and your intention must be to act with with a proportionate reason.

E.g., Hoose would agree with Fletcher’s example of killing a baby to save the lives of its family. It brings about more value than disvalue, so we have a proportionate reason for breaking the primary precepts in that case.

A resulting strength of proportionalism is it’s far greater flexibility.

Euthanasia, abortion, genetic engineering, anything natural law said to be wrong could in principle be right depending on whether there is a proportionate reason for doing them in a particular situation. There are no intrinsically evil actions. An action can be intrinsically in violation of the principles of natural law, but for proportionalism that doesn’t establish wrongness.

Hoose’s argument for the greater coherence of proportionalism.

Aquinas said it’s bad to go against the primary precepts, but it could overall be justified through the double effect in some cases.

Hoose objects that an overall good act cannot be composed of bad parts (e.g breaking the precepts). Moral evil is moral evil, it could never be a component of moral goodness.

Moral actions are composed of parts like intention and their dis/accordance with the precepts, but those parts cannot be called good or bad in themselves. Only the overall act can be good or bad. So, no part of an action can be morally bad, including what the action itself is and whether it breaks the precepts.

The ‘parts’ of an action are still good/evil, not in a moral sense but in a factual or physical sense, regarding their enabling or disabling of flourishing (eudaimonia).

Factual enabling of flourishing ‘Ontic goods’. These are physical or factual goods, such as health, life and knowledge (these all enable flourishing and are thus ontic goods). ‘Ontic evils’ are the deprivation of such goods. Whatever in an action enables flourishing is an ‘ontic good’, whatever disables it is an ‘ontic evil’.

To decide whether the action is overall morally good however, we need to judge whether the action produced more ontic good compared to ontic evil. If it does, we have a proportionate reason for doing it, even if it goes against the primary precepts.

Aquinas would say killing the baby in Fletcher’s example is just morally evil – but Hoose is saying no, it’s only an ontic evil – which must be measured against the ontic good caused by the action (saving the whole family). If there’s a proportionate reason for doing it, then it is a morally good act to kill the baby.

“An act is either morally right or morally wrong. It cannot be both. If we talk of morally evil (meaning morally wrong) elements in an act that is morally right and is performed by a morally good person, we confuse the whole issue.” – B. Hoose.

Evaluation defending Natural law

John Paul II defends Natural law ethics, arguing that proportionalism is not a valid development because it misunderstands the objective/intention required for ethical action.

“Acting is morally good when the choices of freedom are in conformity with man’s true good and thus express the voluntary ordering of the person towards his ultimate end” – John Paul II

Under natural law, we intentionally act on the moral law discovered in our nature by reason (primary precepts). God designed us to intuitively know these moral laws – so our telos/purpose is to follow them. The goal of natural law is to follow the primary precepts. John Paul II is correct that Proportionalism misdirects our goal/intention towards the balance of ontic goods over evils produced by our action. God has designed us to follow the primary precepts – so that is our ethical purpose. Hoose misdirects us away from that.

“The morality of the human act depends primarily and fundamentally on the “object” rationally chosen by the deliberate will,  as is borne out by the insightful analysis, still valid today, made by Saint Thomas.” – John Paul II.

Evaluation criticising Natural law

Defenders of traditional Natural law like John Paul II assume that our ultimate end is simply to follow the precepts of natural law in a ridged deontological way.

Calculating the ontic goods over evils of our actions could actually be part of our ultimate end.

Even Aquinas accepted that his list of primary precepts was not final but could be added to. The project of understanding the telos of our nature is ongoing. Developments like those of proportionalism cannot be dismissed simply because they differ with the traditional approach.

Whether proportionalism is better suited to our fallen world

A strength of the double effect is that it is pragmatic.

It fits with the reality of moral decision making. Sometimes actions can have two effects and a method is required that makes sense of how to judge them. Aquinas’ self-defence illustration is intuitive.

Proportionalism has the strength of being better suited to moral decision making in our imperfect world.

The Fall destabilised creation, including the moral order. God designed the natural law to perfectly fit following it with human flourishing. In a post-lapsarian world, the presence of ontic evil around acts that follow the natural law sometimes mean they prevent flourishing. Taking a deontological approach to natural law doesn’t make sense.

Ontic goods and evils are defined in relation to whatever enables or disables flourishing. Flourishing is part of our telos. So arguably following proportionalism would successfully orientate us towards our telos.

Weakness: John Paul II argues that although consequences matter, proportionalism takes that too far when it claims that there are no intrinsically evil actions.

It can never enable achievement of our telos to do such acts. Consequences certainly matter, but they can never make an intrinsically evil act acceptable. Such acts disorder us; they can never rightly order us towards our end, even if done with the intention of bringing about a greater balance of ontic goods over ontic evils. It is better to avoid them and bear the consequences, even if it means suffering and dying. JP2 reminds us that early Christians were prepared to be martyred for their faith.

Only intentionally following of the natural law within our nature aims us at our telos of glorifying God. Consequences matter to some degree, but not to the point of justifying intrinsically evil acts.

“Christian ethics, which pays particular attention to the moral object, does not refuse to consider the inner ‘teleology’ of acting, inasmuch as it is directed to promoting the true good of the person; but it recognizes that it is really pursued only when the essential elements of human nature are respected. The human act, good according to its object, is also capable of being ordered to its ultimate end … If acts are intrinsically evil, a good intention or particular circumstances can diminish their evil, but they cannot remove it … an intention is good when it has as its aim the true good of the person in view of his ultimate end. But acts whose object is ‘not capable of being ordered’ to God and ‘unworthy of the human person’ are always and in every case in conflict with that good.” – John Paul II.

Evaluation defending proportionalism

John Paul II’s reference to the Christian Martyrs is a self-serving illustration. It’s easy for most people to make sense of sacrificing oneself rather than break the natural law. However, what about cases where if we don’t break the natural law, we will be letting others suffer and die? Euthanasia is a clear example.

Evaluation criticising proportionalism

This is the ultimate argument against all forms of religious consequentialism. They misunderstand the purpose of morality. We are not here on earth to achieve happiness, but to follow God’s moral law. If suffering results from following God’s law due to living in a fallen world, that doesn’t invalidate God’s law. Aristotle and Aquinas both explained that flourishing is not happiness, but cultivating the virtues which rationally order us in our actions towards our end. As JP2’s example of the martyrs shows, if it is virtuous to suffer and die then that is what we should do, technically that is flourishing. Cardinal Newman expressed this sentiment in a poetic if stark manner:

“The Catholic Church holds it better for the sun and moon to drop from heaven, for the earth to fail, and for all the many millions on it to die of starvation in extremest agony … than that one soul, I will not say, should be lost, but should commit one single venial sin, should tell one willful untruth, or should steal one poor farthing without excuse.” – John Henry Newman.

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Natural Law

St. Thomas Aquinas on the Natural Law.

After his Five Ways of Proving the Existence of God ( ST Ia, 2, 3 ), St. Thomas Aquinas is probably most famous for articulating a concise but robust understanding of natural law. Just as he claims and demonstrates in his proofs for God’s existence that natural human reason can come to some understanding of the Author of nature, so in his exposition of natural law, Aquinas shows that human beings can discover objective moral norms by reasoning from the objective order in nature, specifically human nature. While Aquinas believes that this objective order of nature (and the operation of human reason which discovers it) are, in fact, ultimately grounded and established by God’s intelligent willing of the good of creation (i.e., His love), Aquinas’s understands that one need not know that God’s providence underpins the objective order of nature. Thus, whether or not one believes in or rationally proves there is a God, one can recognize and be bound by the natural law for, according to Aquinas, it applies to all people at all times, and in some sense is known by all rational humans (though, of course, they do not (but should) always act in accordance with it).

Eternal Law

In his monumental Summa Theologiae , St. Thomas Aquinas , devotes relatively little space to the natural law – merely a single question and passing mention in two others. There, he bases his doctrine of the natural law, as one would expect, on his understanding of God and His relation to His creation. He grounds his theory of natural law in the notion of an eternal law (in God). In asking whether there is an eternal law, he begins by stating a general definition of all law: Law is a dictate of reason from the ruler for the community he rules.

This dictate of reason is first and foremost within the reason or intellect of the ruler. It is the idea of what should be done to ensure the well-ordered functioning of whatever community the ruler has care for. (It is a fundamental tenet of Aquinas’ political theory that rulers rule for the sake of the governed, i.e., for the good and well-being of those subject to the ruler.) Since he has elsewhere shown that God rules the world with his reason (since he is the cause of its being (cf.  Summa Theologiae I 22, 1-2) ), Aquinas concludes that God has in His intellect an idea by which He governs the world. This Idea, in God, for the governance of things is the eternal law.  ( ST I-II, 91, 1)

Defining the Natural Law

Next, Aquinas asks whether there is in us a natural law. First, he makes a distinction: A law is not only in the reason of a ruler, but may also be in the thing that is ruled. Just as the plan or rule for constructing a house resides primarily in the mind of an architect, so that plan or rule can be said also to be in the house so constructed, imprinted, as it were, into the very composition of the house and dictating how the house is properly to operate or function (cf. ST I-II, 93, 1 ).

In the case of the eternal law, the things of creation that are ruled by that law have it imprinted on the them through their nature or essence. Since things act according to their nature, they derive their “respective inclinations to their proper acts and ends” ( final cause ) according to the law that is written into their nature. Everything in nature, insofar as they reflect the order by which God directs them through their nature for their own benefit, reflects the eternal law in their own natures  ( ST  I-II, 91, 2)

The natural law is properly applied to the case of human beings, and acquires greater precision because of the fact that we have reason and free will . It is our nature as humans to act freely (i.e., to be provident for ourselves and others) by directing ourselves toward our proper acts and end. That is, we human beings must exercise our natural reason to discover what is best for us in order to achieve the end to which our nature inclines. Furthermore, we must do this through the exercise our freedom, by choosing what reason determines to be naturally suited to us, i.e., what is best for our nature.

Now among all others, the rational creature is subject to Divine providence in the most excellent way, in so far as it partakes of a share of providence, by being provident both for itself and for others. Wherefore it has a share of the Eternal Reason, whereby it has a natural inclination to its proper act and end: and this participation of the eternal law in the rational creature is called the natural law . ( ST  I-II, 91, 2)

The natural inclination of humans to achieve their proper end through reason and free will is the natural law. Formally defined, the natural law is humans’ participation in the eternal law, through reason and will. Humans actively participate in the eternal law of God (the governance of the world) by using reason in conformity with the natural law to discern what is good and evil . Just as the proper functioning of the body and its organs in order to achieve an optimal physical life defines health and the rules of medicine and healthy living, so the proper functioning of all human faculties defines the human good and the rules for living well (morally, spiritually, socially, etc.). The natural law encompasses the rules and precepts by which humans do good actions and live well, individually and collectively.

The Human Good

In applying this universal notion of natural law to the human person, one first must decide what it is that (God has ordained) human nature is inclined toward. Since each thing has a nature (given it by God), and each thing has a natural end, so there is a fulfillment to human activity of living. Even apart from knowing about this dependence on God, one can discover by reason what the purpose of living is, and so he or she will discover what his or her natural end is. Building on the insight of Aristotle that “happiness is what all desire,” a person can conclude that they will be happy when he or she achieves this natural end, specifically “a life of virtuous activity in accordance with reason” ( Nicomachean Ethics , I, 7 ; see Aquinas, Commentary, Bk. I, C h. 10, nos. 127-8 ). The commands or precepts, then, that lead to human happiness or flourishing is what Aquinas means by the natural law.

Aquinas distinguishes different levels of precepts or commands that constitute or comprise the natural law. The most universal is the command “Good is to be done and pursued and evil avoided ” ( ST I-II, 94, 2 ). This applies to everything and everyone, so much so that some consider it to be more of a description or definition of what we mean by “good.” For these philosophers, a thing is “good” just in case it is pursued or done by someone. Aquinas would agree with this to a certain extent; but he would say that that is a definition of an  apparent  good. Thus, this position of Aquinas has a certain phenomenological appeal: a person does anything and everything he or she does only because that thing at least “appears” to be good. Even when I choose something that I know is bad for myself, I nevertheless chooses it under some aspect of good, i.e., as some kind of good. I know the cake is fattening, for example, and I don’t choose to eat it  as  fattening. I do, however, choose to eat it as tasty (which is an apparent, though not a true, good). A true good is an object of desire which reason determines to be appropriate or fitting to a given person, in certain circumstances, in light of their universal human nature ( ST I-II, 94, 3 , esp. ad 3). Sometimes this will include eating cake, but not too much of it.

Precepts of the Natural Law

The precepts of the natural law are commands derived from the inclinations or desires natural to human beings; for Aquinas there is no problem in deriving “ought” from “is.” Since the object of every desire has the character or formality of “good,” there are a variety of goods we naturally seek. They are all subsumed under the First Principle of Practical Reasoning: The good is to be done and pursued, and evil avoided. This first principle is operative in all the precepts that comprise the natural law. Subsequent precepts of the natural law derive first from various sorts of inclinations as humans share these with other sorts of natural things, and second, as one discovers these goods in greater specificity ( ST I-II, 94, 2 ).

On the level that we share with all substances, the natural law commands that we preserve ourselves in being. Therefore, one of the most basic precepts of the natural law is to not commit suicide. (Nevertheless, suicide can, sadly, be chosen as an apparent good, e.g., as the cessation of pain; often it is not chosen at all, but the result of mental illness.) On the level we share with all living things, the natural law commands that we take care of our life, and transmit that life to the next generation. Thus, almost as basic as the preservation of our lives, the natural law commands us to rear and care for offspring. On the level that is most specific to humans, the fulfillment of the natural law consists in the exercise those activities that are unique and proper to humans, i.e., knowledge and love , and in a state that is also natural to human persons, i.e., society. The natural law, thus, commands us to develop our rational and moral capacities by growing in the virtues of intellect (prudence, art, and science ) and will ( justice , courage, temperance) ( ST I-II, 94, 3 ). Natural law also commands those things that make for the harmonious functioning of society (“Thou shalt not kill,” “Thou shalt not steal”). Human nature also shows that each of us have a destiny beyond this world, too. Man’s infinite capacity to know and love shows that he is destined to know and love an infinite being, God, and so, natural law commands the practice of religion.

All of these levels of precepts so far outlined are only the most basic. “The good is to be done and pursued and evil is to be avoided” is not very helpful for making actual choices. Therefore, Aquinas believes that one needs one’s reason to be perfected by the virtues , especially prudence, in order to discover precepts of the natural law that are more proximate to the choices that one has to make on a day-to-day basis. As is indicated in the table above, particular precepts, as they derive from more general ones in issuing forth in action, can conflict with each other. The command to save David might conflict with the apparent injunction that one ought not to lie to soldiers bent on unjustly executing him, but might cohere with the injunction not to give them information they have no just right to. Applying the natural law to cases, then, is more open to error, even though the general principles are true and apparent, and there is, in fact, a true and most rational application to certain particular circumstances ( ST I-II, 94, 3 ).

Application of the Natural Law as an Absolute / Objective Standard

Given that the natural law depends on the inclinations inherent in human nature (as ordained by the intelligent, loving providence of God, i.e., the Eternal Law) it applies to all people, at all times. Yet Aquinas readily acknowledges that the laws and morals of people can vary wildly. Rather than succumbing to moral relativism (where what is morally good and right is merely what each society or person thinks is such), Aquinas seeks both to uphold the objective and universal basis of morality in the natural law, and to explain the variety of moral and legal injunctions. Despite his belief that the natural law applies universally, Aquinas explains how this variety arises, first from the perspective of the generality of the precepts, and then from the perspective of the knowledge an individual has of the precepts.

From the perspective of the generality of the precepts, Aquinas reasons that the more general a precept is, the less is it open to exceptions. The general principles of both speculative reasoning (e.g., mathematics and the sciences) and practical reasoning (arts, ethics and politics) are necessary, and so the primary precepts of the natural law apply in all cases. The good is always to be done; life is always to be preserved. Yet, as one seeks to apply the general principles to particular cases, the particular circumstances necessitate greater variety in the kinds of actions required by the principle. Preserving life in the community may require the execution of murderers .

Although there is necessity in the general principles, the more we descend to matters of detail, the more frequently we encounter defects. … In matters of action, truth or practical rectitude is not the same for all, as to matters of detail, but only as to the general principles: and where there is the same rectitude in matters of detail, it is not equally known to all . ( ST I-II, 94, 4 )

From the perspective of the knowledge an of individual, the variety of ways of applying the natural law also leads to variability in knowing how to so apply the principles. The more general a precept is, the more likely it is to be known by a greater number of people. The more particular a precept of the natural law (or the application of a general precept to a particular case) is, the more likely it is that a particular individual will get it wrong.

Aquinas thus concludes that the greater the detail, the more likely it will be that people disagree about what the natural law requires:

Consequently, we must say that the natural law, as to general principles, is the same for all, both as to rectitude and as to knowledge. But as to certain matters of detail, which are conclusions, as it were, of those general principles, it is the same for all in the majority of cases, both as to rectitude and as to knowledge; and yet in some few cases it may fail, both as to rectitude, by reason of certain obstacles (just as natures subject to generation and corruption fail in some few cases on account of some obstacle), and as to knowledge, since in some the reason is perverted by passion, or evil habit, or an evil disposition of nature. ( ST I-II, 94, 4 )

Even though it is true that as one makes more particular applications of the general precepts of the natural law, the form that application takes is likely to be displayed in a greater variety of actions, nevertheless, the same natural law is being applied in each case, and the same natural law commands a variety of actions as given situations demand. What is the right thing to do might vary according to a variety of circumstances, yet in each case, the right thing to do is objective and necessary, a rational deduction of the certain general principles of moral action.

Just and Unjust Laws

Aquinas thus argues that the natural law cannot be changed, except by way of addition. Such additions, he says, are “things for the benefit of human life [which] have been added over and above the natural law, both by Divine law and by human laws ” ( ST I-II, 94, 5 ). Nothing can be subtracted from the natural law with regard to the primary precepts, and thus, no human law which commands something contrary to the natural law can be just. Interestingly, he notes, that certain features of society, while not being provided to humans by nature, accord with the natural law under the general principle of being “devised by human reason for the benefit of human life” ( ad 3 ). He includes among such non-natural features as consonant with natural law: clothing, private property and slavery. Yet by introducing the condition that just additions to the natural law must be for the benefit of human life, he allows, as we’ll see below, that should they fail this condition, they would thereby be subtractions from the natural law and so, unjust.

Given the universality and objective character of the natural law, Aquinas unsurprisingly asserts that it cannot be forgotten or “abolished from the human heart” ( ST I-II, 94, 6 ). Nevertheless, he recognizes that many people act as though they do not recognize this universal and objective standard of morality since they are inhibited by the influence of concupiscence or other passions , by an error of reasoning , or “by vicious customs and corrupt habits.” Indeed, as the third objection notes, there are whole societies which operate according to laws at variance with the natural law, declaring their departures as “just.” Aquinas responds that such laws abolish only the “secondary precepts of the natural law, against which some legislators have framed certain enactments which are unjust.” ( ST 94, 6 ad 3 ). This nuanced understanding of the natural law, then, provides a standard for judging just and unjust laws. He makes this criterion of just laws explicit when he turns to the origin of human law.

Consequently, every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.” ( ST I-II, 95, 2 )

Aquinas, thus, seems to grant that whatever judges a system of human laws must stand outside and above that system. The laws of Nazi Germany which prescribed the execution of Jews and dissidents and forbade their protection constituted “crimes against humanity,” not because these laws were in violation of other laws of Germany, or the laws of France or the United States. The reason that the attempted destruction of the Jews was wrong was not even because the whole rest of the world thought it was wrong. The crimes of Nazi Germany could be judged as crimes because they were violations of a law that stands apart from and above the laws of every nation; they were violations of the natural law. Natural law, then, serves as the standard against which we determine whether human positive laws are just or not.

One can see these principles at work in “ Letter from Birmingham City Jail ” by Dr. Martin Luther King, Jr. As King says:

I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.” Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.

The justification to which King appeals in order to show that segregation laws are unjust is not other laws of Alabama or of the United States, but the natural law as it is founded in human nature. Human nature demands a true sense of equality and dignity, and because segregation laws violate that equality and dignity, they are unjust. Segregation laws clearly diminished the dignity, and thus damage the personality of blacks in Alabama. Interestingly, King asserts that segregation laws were harmful to the white majority, distorting their proper dignity and damaging their personality as well. In both cases, segregation laws are an affront to human dignity, founded as it is in our common human nature.

The Thomistic notion of natural law has its roots, then, in a quite basic understanding of the universe as caused and cared for by God, and the basic notion of what a law is. It is a fairly sophisticated notion by which to ground the legitimacy of human law in something more universal than the mere agreement and decree of legislators. Yet, it allows that what the natural law commands or allows is not perfectly obvious when one gets to the proximate level of commanding or forbidding specific acts. It grounds the notion that there are some things that are wrong, always and everywhere, i.e., “crimes against humanity,” while avoiding the obvious difficulties of claiming that this is determined by any sort of human consensus. Nevertheless, it still sees the interplay of people in social and rational discourse as necessary to determine what in particular the natural law requires.

Updated February 24, 2024

Revised and expanded August 26, 2021

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The Nature of Law

Lawyers are typically interested in the question: What is the law on a particular issue? This is always a local question and answers to it are bound to differ according to the specific jurisdiction in which they are asked. In contrast, philosophy of law is interested in the general question: What is Law? This general question about the nature of law presupposes that law is a unique social-political phenomenon, with more or less universal characteristics that can be discerned through philosophical analysis. General jurisprudence, as this philosophical inquiry about the nature of law is called, is meant to be universal. It assumes that law possesses certain features, and it possesses them by its very nature, or essence, as law, whenever and wherever it happens to exist. However, even if there are such universal characteristics of law—which is controversial, as we will later discuss—the reasons for a philosophical interest in elucidating them remain to be explained. First, there is the sheer intellectual interest in understanding such a complex social phenomenon which is, after all, one of the most intricate aspects of human culture. Law, however, is also a normative social practice: it purports to guide human behavior, giving rise to reasons for action. An attempt to explain this normative, reason-giving aspect of law is one of the main challenges of general jurisprudence. These two sources of interest in the nature of law are closely linked. Law is not the only normative domain in our culture; morality, religion, social conventions, etiquette, and so on, also guide human conduct in many ways which are similar to law. Therefore, part of what is involved in the understanding of the nature of law consists in an explanation of how law differs from these similar normative domains, how it interacts with them, and whether its intelligibility depends on other normative orders, like morality or social conventions.

Contemporary legal theories define these two main interests in the nature of law in the following terms. First, we need to understand the general conditions that would render any putative norm legally valid. Is it, for example, just a matter of the source of the norm, such as its enactment by a particular political institution, or is it also a matter of the norm’s content? This is the general question about the conditions of legal validity. Second, there is the interest in the normative aspect of law. This philosophical interest is twofold: A complete philosophical account of the normativity of law comprises both an explanatory and a justificatory task. The explanatory task consists of an attempt to explain how legal norms can give rise to reasons for action, and what kinds of reasons are involved. The task of justification concerns the question of whether people ought to comply—morally speaking or all things considered—with law’s demands. In other words, it is the attempt to explain the moral legitimacy of law and the subjects’ reasons for complying with it. A theory about the nature of law, as opposed to critical theories of law, concentrates on the first of these two questions. It purports to explain what the normativity of law actually consists in. Some contemporary legal philosophers, however, doubt that these two aspects of the normativity of law can be separated. (We will return to this later.)

Thus, elucidating the conditions of legal validity and explaining the normativity of law form the two main subjects of any general theory about the nature of law. In section 1, we will explain some of the main debates about these two issues. In section 2, we will discuss some of the methodological debates about the nature of general jurisprudence. In the course of the last few centuries, two main rival philosophical traditions have emerged about the nature of legality. The older one, dating back to late mediaeval Christian scholarship, is called the natural law tradition. Since the early 19th century, natural law theories have been fiercely challenged by the legal positivism tradition promulgated by such scholars as Jeremy Bentham and John Austin . The philosophical origins of legal positivism are much earlier, though, probably in the political philosophy of Thomas Hobbes . The main controversy between these two traditions concerns the conditions of legal validity. Basically, legal positivism asserts, and natural law denies, that the conditions of legal validity are purely a matter of social facts. In contrast to positivism, natural law claims that the conditions of legal validity are not exhausted by social facts; the moral content of the putative norms also bears on their legal validity. As the famous dictum, commonly attributed to Saint Augustine, has it: lex iniusta non est lex (unjust law is not law). (Augustine, De Libero Arbitrio, I, 5; see also Aquinas, Summa Theologica, I-II, Q. 96, Art. 4.)

1.1 The Conditions of Legal Validity

1.2 the normativity of law, 2.1.1 conceptual analysis views, 2.1.2 investigating law itself, 2.1.3 the metanormative inquiry view, 2.1.4 the prescriptive view, 2.1.5 constructive interpretation of legal practice, 2.2.1 preliminaries, 2.2.2 is legal theory evaluative in the relevant sense, other internet resources, related entries, 1. general jurisprudence.

The main insight of legal positivism, that the conditions of legal validity are determined by social facts, involves two separate claims which have been labeled The Social Thesis and The Separation Thesis. The Social Thesis asserts that law is, profoundly, a social phenomenon, and that the conditions of legal validity consist of social—that is, non-normative—facts. Early legal positivists followed Hobbes’ insight that the law is, essentially, an instrument of political sovereignty, and they maintained that the basic source of legal validity resides in the facts constituting political sovereignty. Law, they thought, is basically the command of the sovereign. Later legal positivists have modified this view, maintaining that social rules, and not the facts about sovereignty, constitute the grounds of law. Most contemporary legal positivists share the view that there are rules of recognition, namely, social rules or conventions which determine certain facts or events that provide the ways for the creation, modification, and annulment of legal standards. These facts, such as an act of legislation or a judicial decision, are the sources of law conventionally identified as such in each and every modern legal system. One way of understanding the legal positivist position here is to see it as a form of reduction: legal positivism maintains, essentially, that legal validity is reducible to facts of a non-normative type, that is, facts about people’s conduct, beliefs and attitudes.

Natural lawyers deny this insight, insisting that a putative norm cannot become legally valid unless it passes a certain threshold of morality. Positive law must conform in its content to some basic precepts of natural law, that is, universal morality, in order to become law in the first place. In other words, natural lawyers maintain that the moral content or merit of norms, and not just their social origins, also form part of the conditions of legal validity. And again, it is possible to view this position as a non-reductive conception of law, maintaining that legal validity cannot be reduced to non-normative facts. See the entry on natural law theories .

The Separation Thesis is an important negative implication of the Social Thesis, maintaining that there is a conceptual separation between law and morality, that is, between what the law is, and what the law ought to be. The Separation Thesis, however, has often been overstated. It is sometimes thought that natural law asserts, and legal positivism denies, that the law is, by necessity, morally good or that the law must have some minimal moral content. The Social Thesis certainly does not entail the falsehood of the assumption that there is something necessarily good in the law. Legal positivism can accept the claim that law is, by its very nature or its essential functions in society, something good that deserves our moral appreciation. Nor is legal positivism forced to deny the plausible claim that wherever law exists, it would have to have a great many prescriptions which coincide with morality. There is probably a considerable overlap, and perhaps necessarily so, between the actual content of law and morality. Once again, the Separation Thesis, properly understood, pertains only to the conditions of legal validity. It asserts that the conditions of legal validity do not depend on the moral merits of the norms in question. What the law is cannot depend on what it ought to be in the relevant circumstances.

Many contemporary legal positivists would not subscribe to this formulation of the Separation Thesis. A contemporary school of thought, called inclusive legal positivism , endorses the Social Thesis, namely, that the basic conditions of legal validity derive from social facts, such as social rules or conventions which happen to prevail in a given community. But, inclusive legal positivists maintain, legal validity is sometimes a matter of the moral content of the norms, depending on the particular conventions that happen to prevail in any given community. The social conventions on the basis of which we identify the law may, but need not, contain reference to moral content as a condition of legality (see, for example, Waluchow 1994).

The natural law tradition has undergone a considerable refinement in the 20th century, mainly because its classical, popular version faced an obvious objection about its core insight: it is just difficult to maintain that morally bad law is not law. The idea that law must pass, as it were, a kind of moral filter in order to count as law strikes most jurists as incompatible with the legal world as we know it. Therefore, contemporary natural lawyers have suggested different and more subtle interpretations of the main tenets of natural law. For example, John Finnis (1980) views natural law (in its Thomist version) not as a constraint on the legal validity of positive laws, but mainly as an elucidation of an ideal of law in its fullest, or highest sense, concentrating on the ways in which law necessarily promotes the common good. As we have noted earlier, however, it is not clear that such a view about the necessary moral content of law is at odds with the main tenets of legal positivism. To the extent that there is a debate here, it is a metaphysical one about what is essential or necessary to law, and about whether the essential features of law must be elucidated in teleological terms or not. Legal positivists do not tend to seek deep teleological accounts of law, along the lines articulated by Finnis, but whether they need to deny such metaphysical projects is far from clear.

The idea that the conditions of legal validity are at least partly a matter of the moral content or merits of norms is articulated in a sophisticated manner by Ronald Dworkin’s legal theory. Dworkin is not a classical natural lawyer, however, and he does not maintain that morally acceptable content is a precondition of a norm’s legality. His core idea is that the very distinction between facts and values in the legal domain, between what the law is and what it ought to be, is much more blurred than legal positivism would have it: Determining what the law is in particular cases inevitably depends on moral-political considerations about what it ought to be. Evaluative judgments, about the content law ought to have or what it ought to prescribe, partly determine what the law actually is.

Dworkin’s legal theory is not based on a general repudiation of the classical fact-value distinction, as much as it is based on a certain conception of legal reasoning. This conception went through two main stages. In the 1970s Dworkin (1977) argued that the falsehood of legal positivism resides in the fact that it is incapable of accounting for the important role that legal principles play in the law. Legal positivism envisaged, Dworkin claimed, that the law consists of rules only. However, this is a serious mistake, since in addition to rules, law is partly determined by legal principles. The distinction between rules and principles is a logical one. Rules, Dworkin maintained, apply in an “all or nothing fashion.” If the rule applies to the circumstances, it determines a particular legal outcome. If it does not apply, it is simply irrelevant to the outcome. On the other hand, principles do not determine an outcome even if they clearly apply to the pertinent circumstances. Principles provide judges with a legal reason to decide the case one way or the other, and hence they only have a dimension of weight. That is, the reasons provided by the principle may be relatively strong, or weak, but they are never “absolute.” Such reasons, by themselves, cannot determine an outcome, as rules do.

The most interesting, and from a positivist perspective, most problematic, aspect of legal principles, however, consists in their moral dimension. According to Dworkin’s theory, unlike legal rules, which may or may not have something to do with morality, principles are essentially moral in their content. It is, in fact, partly a moral consideration that determines whether a legal principle exists or not. Why is that? Because a legal principle exists, according to Dworkin, if the principle follows from the best moral and political interpretation of past judicial and legislative decisions in the relevant domain. In other words, legal principles occupy an intermediary space between legal rules and moral principles. Legal rules are posited by recognized institutions and their validity derives from their enacted source. Moral principles are what they are due to their content, and their validity is purely content dependent. Legal principles, on the other hand, gain their validity from a combination of source-based and content-based considerations. As Dworkin put it in the most general terms: “According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice” (Dworkin 1986, 225). The validity of a legal principle then, derives, from a combination of facts and moral considerations. The facts concern the past legal decisions which have taken place in the relevant domain, and the considerations of morals and politics concern the ways in which those past decisions can best be accounted for by the correct moral principles.

Needless to say, if such an account of legal principles is correct, the Separation Thesis can no longer be maintained. But many legal philosophers doubt that there are legal principles of the kind Dworkin envisaged. There is an alternative, more natural way to account for the distinction between rules and principles in the law: the relevant difference concerns the level of generality, or vagueness, of the norm-act prescribed by the pertinent legal norm. Legal norms can be more or less general, or vague, in their definition of the norm-act prescribed by the rule, and the more general or vague they are, the more they tend to have those quasi-logical features Dworkin attributes to principles. More importantly, notice that if you make the legal validity of norms, such as legal principles, depend on moral argument, you allow for the possibility that an entire legal community may get its laws wrong. Any moral mistake in the reasoning leading to a legal principle might render the conclusion about the principle unsound, and the principle itself thus not legally valid. Since there is nothing to prevent judges and other legal actors from making moral mistakes, there is nothing to prevent a result whereby an entire legal community, and for a long time, gets its laws wrong (Marmor 2011, chapter 4). Perhaps Dworkin would have not found this problematic, but others might; the idea that an entire legal community can be systematically mistaken about its own laws might strike legal theorists as deeply problematic.

In the 1980s Dworkin radicalized his views about these issues, striving to ground his anti-positivist legal theory on a general theory of interpretation, and emphasizing law’s profound interpretative nature. Despite the fact that Dworkin’s interpretative theory of law is extremely sophisticated and complex, the essence of his argument from interpretation can be summarized in a rather simple way. The main argument consists of two main premises. The first thesis maintains that determining what the law requires in each and every particular case necessarily involves interpretative reasoning. Any statement of the form “According to the law in \(S\), \(x\) has a right/duty etc., to \(y\)” is a conclusion of some interpretation or other. Now, according to the second premise, interpretation always involves evaluative considerations. More precisely, perhaps, interpretation is neither purely a matter of determining facts, nor is it a matter of evaluative judgment per se , but an inseparable mixture of both. Clearly enough, one who accepts both these theses must conclude that the Separation Thesis is fundamentally flawed. If Dworkin is correct about both theses, it surely follows that determining what the law requires always involves evaluative considerations.

Notably, the first premise of Dworkin’s general argument is highly contestable. Some legal philosophers have argued that legal reasoning is not as thoroughly interpretative as Dworkin assumes. Interpretation, according to this view, long maintained by H.L.A. Hart (1961, chapter 7), is an exception to the standard understanding of language and communication, rendered necessary only when the law is, for some reason, unclear. However, in most standard instances, the law can simply be understood, and applied, without the mediation of interpretation (Marmor 2011, chapter 6).

Dworkin’s legal theory shares certain insights with the inclusive version of legal positivism. Note, however, that although both Dworkin and inclusive legal positivists share the view that morality and legal validity are closely related, they differ on the grounds of this relationship. Dworkin maintains that the dependence of legal validity on moral considerations is an essential feature of law that derives from law’s profoundly interpretative nature. Inclusive positivism, on the other hand, maintains that such a dependence of legal validity on moral considerations is a contingent matter; it does not derive from the nature of law or of legal reasoning as such. Inclusive positivists accept the Social Thesis; they claim that moral considerations affect legal validity only in those cases where this is dictated by the social rules or conventions which happen to prevail in a given legal system. The relevance of morality is determined in any given legal system by the contingent content of that society’s conventions. As opposed to both these views, traditional, or as it is now called, exclusive legal positivism maintains that a norm’s legal validity is never dependent on its moral content. Legal validity, according to this view, is entirely dependent on the conventionally recognized factual sources of law.

It may be worth noting that those legal theories maintaining that legal validity partly depends on moral considerations must also share a certain view about the nature of morality. Namely, they must hold an objective stance with respect to the nature of moral values. Otherwise, if moral values are not objective and legality depends on morality, legality would also be rendered subjective, posing serious problems for the question of how to identify what the law is. Some legal theories, however, do insist on the subjectivity of moral judgements, thus embracing the skeptical conclusions that follow about the nature of law. According to these skeptical theories, law is, indeed, profoundly dependent on morality, but, as these theorists assume that morality is entirely subjective, it only demonstrates how the law is also profoundly subjective, always up for grabs, so to speak. This skeptical approach, fashionable in so-called post-modernist literature, crucially depends on a subjectivist theory of values, which is rarely articulated in this literature in any sophisticated way.

Throughout human history the law has been known as a coercive institution, enforcing its practical demands on its subjects by means of threats and violence. This conspicuous feature of law made it very tempting for some philosophers to assume that the normativity of law resides in its coercive aspect. Even within the legal positivist tradition, however, the coercive aspect of the law has given rise to fierce controversies. Early legal positivists, such as Bentham and Austin, maintained that coercion is an essential feature of law, distinguishing it from other normative domains. Legal positivists in the 20th century have tended to deny this, claiming that coercion is neither essential to law, nor, actually, pivotal to the fulfillment of its functions in society. Before we unpack the various issues involved in this controversy, it might be worth noting that the debate about law’s coercive aspect is one good example of debates in jurisprudence that focus on what might be an essential or a necessary feature of law, regardless of its particular manifestations in this or that legal system. How to understand these claims about the essence of law, and the question of whether these claims are about metaphysics or something else, perhaps about morality, will be discussed in section 2.1.

Returning to law’s coercive aspect, there are several issues entangled here, and we should carefully separate them. John Austin famously maintained that each and every legal norm, as such, must comprise a threat backed by sanction. This involves at least two separate claims: In one sense, it can be understood as a thesis about the concept of law, maintaining that what we call “law” can only be those norms which are backed by sanctions of the political sovereign. In a second, though not less problematic sense, the intimate connection between the law and the threat of sanctions is a thesis about the normativity of law. It is a reductionist thesis about law’s normative character, maintaining that the normativity of law consists in the subjects’ ability to predict the chances of incurring punishment or evil and their presumed desire to avoid it.

In addition to this particular controversy, there is the further question, concerning the relative importance of sanctions for the ability of law to fulfill its social functions. Hans Kelsen, for instance, maintained that the monopolization of violence in society, and the law’s ability to impose its demands by violent means, is the most important of law’s functions in society. Twentieth century legal positivists, like H.L.A. Hart and Joseph Raz, deny this, maintaining that the coercive aspect of law is much more marginal than their predecessors assumed. Once again, the controversy here is actually twofold: is coercion essential to what the law does? And even if it is not deemed essential, how important it is, compared with the other functions law fulfills in our lives?

Austin’s reductionist account of the normativity of law, maintaining that the normative aspect of law simply consists in the subjects’ desire to avoid sanctions, was discussed extensively, and fiercely criticized, by H.L.A. Hart. Hart’s fundamental objection to Austin’s reductionist account of law’s normativity is, on his own account, “that the predictive interpretation obscures the fact that, where rules exist, deviations from them are not merely grounds for prediction that hostile reactions will follow…. but are also deemed to be a reason or justification for such reaction and for applying the sanctions” (Hart 1961, 82). This emphasis on the reason-giving function of rules is surely correct, but perhaps not enough. Supporters of the predictive account could claim that it only begs the further question of why people should regard the rules of law as reasons or justifications for actions. If it is, for example, only because the law happens to be an efficient sanction-provider, then the predictive model of the normativity of law may turn out to be correct after all. In other words, Hart’s fundamental objection to the predictive model is actually a result of his vision about the main functions of law in society, holding, contra Austin and Kelsen, that those functions are not exclusively related to the ability of the law to impose sanctions.

It is arguable, however, that law’s functions in our culture are more closely related to its coercive aspect than Hart seems to have assumed. Contemporary use of “game theory” in the law tends to show that the rationale of a great variety of legal arrangements can be best explained by the function of law in solving problems of opportunism, like the so called Prisoner’s Dilemma situations. In these cases, the law’s main role is, indeed, one of providing coercive incentives for the mutual benefit of all parties concerned. Be this as it may, we should probably refrain from endorsing Austin’s or Kelsen’s position that law’s only function in society is essentially tied to its coercive aspects. Solving recurrent and multiple coordination problems, setting standards for desirable behavior, proclaiming symbolic expressions of communal values, resolving disputes about facts, and such, are important functions which the law serves in our society, and those have very little to do with law’s coercive aspect and its sanction-imposing functions.

The extent to which law can actually guide behavior by providing its subjects with reasons for action has been questioned by a very influential group of legal scholars in the first half of the 20 th century, called the Legal Realism school. American Legal Realists claimed that our ability to predict the outcomes of legal cases on the basis of the rules of law is rather limited. In the more difficult cases which tend to be adjudicated in the appellate courts, legal rules, by themselves, are radically indeterminate as to the outcome of the cases. The Legal Realists thought that lawyers who are interested in the predictive question of what the courts will actually decide in difficult cases need to engage in sociological and psychological research, striving to develop theoretical tools that would enable us to predict legal outcomes. Thus Legal Realism was mainly an attempt to introduce the social sciences into the domain of jurisprudence for predictive purposes. To what extent this scientific project succeeded is a matter of controversy. Be this as it may, Legal Realism paid very little attention to the question of the normativity of law, that is, to the question of how the law does guide behavior in those cases in which it seems to be determinate enough.

A much more promising approach to the normativity of law is found in Joseph Raz’s theory of authority, which also shows how such a theory about the normativity of law entails important conclusions with respect to the conditions of legal validity (Raz 1994). The basic insight of Raz’s argument is that the law is an authoritative social institution. The law, Raz claims, is a de facto authority. However, it is also essential to law that it must be held to claim legitimate authority. Any particular legal system may fail, of course, in its fulfillment of this claim. But law is the kind of institution which necessarily claims to be a legitimate authority.

According to Raz, the essential role of authorities in our practical reasoning is to mediate between the putative subjects of the authority and the right reasons which apply to them in the relevant circumstances. An authority is legitimate if and only if it helps its putative subjects to comply better with the right reasons relevant to their actions—i.e., if they are more likely to act in compliance with these reasons by following the authoritative resolution than they would be if they tried to figure out and act on the reasons directly (without the mediating resolution). For example, there may be many reasons that bear on the question of how fast to drive on a particular road—the amount of pedestrian traffic, impending turns in the road, etc.—but drivers may comply better with the balance of those reasons by following the legal speed limit than if they tried to figure out all the trade-offs in the moment. The legitimacy of the legal speed limit would thus be derived from the way in which it aids people in acting in better compliance with the balance of the right reasons.

Now, it follows that for something to be able to claim legitimate authority, it must be of the kind of thing capable of claiming it, namely, capable of fulfilling such a mediating role. What kinds of things can claim legitimate authority? There are at least two such features necessary for authority-capacity: First, for something to be able to claim legitimate authority, it must be the case that its directives are identifiable as authoritative directives, without the necessity of relying on those same reasons which the authoritative directive replaces. If this condition is not met, namely, if it is impossible to identify the authoritative directive as such without relying on those same reasons the authority was meant to rely on, then the authority could not fulfill its essential, mediating role. In short, it could not make the practical difference it is there to make. Note that this argument does not concern the efficacy of authorities. The point is not that unless authoritative directives can be recognized as such, authorities could not function effectively. The argument is based on the rationale of authorities within our practical reasoning. Authorities are there to make a practical difference, and they could not make such a difference unless the authority’s directive can be recognized as such without recourse to the reasons it is there to decide upon. In other words, it is pointless to have an authoritative directive if, in order to discover what the directive is, you have to engage in the same reasoning that reliance on the directive is supposed to replace. Secondly, for something to be able to claim legitimate authority, it must be capable of forming an opinion on how its subjects ought to behave, distinct from the subjects’ own reasoning about their reasons for action; authority requires some authorship.

Raz’s conception of legal authority provides very strong support for exclusive legal positivism because it requires that the law, qua an authoritative resolution, be identifiable on its own terms, that is, without having to rely on those same considerations that the law is there to resolve. Therefore a norm is legally valid (i.e., authoritative) only if its validity does not derive from moral or other evaluative considerations that the law is intended to replace. Notably, Raz’s theory challenges both Dworkin’s anti-positivist legal theory, and the inclusive version of legal positivism. This challenge, and the controversies it gave rise to, form one of the main topics discussed in contemporary general jurisprudence.

Explaining the rationale of legal authority, however, is not the only component of a theory about the normativity of law. If we hold the legal positivist thesis that law is essentially founded on social conventions, another important question arises here: how can a conventional practice give rise to reasons for action and, in particular, to obligations? Some legal philosophers claimed that conventional rules cannot, by themselves, give rise to obligations. As Leslie Green observed, Hart’s “view that the fundamental rules [of recognition] are ‘mere conventions’ continues to sit uneasily with any notion of obligation,” and this Green finds troubling, because the rules of recognition point to the “sources that judges are legally bound to apply” (Green 1996, 1697). The debate here is partly about the conventional nature of the rules of recognition, and partly about the ways in which conventions can figure in our reasons for action. According to one influential theory, inspired by David Lewis (1969) conventional rules emerge as solutions to large-scale and recurrent coordination problems. If the rules of recognition are, indeed, of such a coordination kind, it is relatively easy to explain how they may give rise to obligations. Coordination conventions would be obligatory if the norm subjects have an obligation to solve the coordination problem which initially gave rise to the emergence of the relevant convention. It is doubtful, however, that the conventions at the foundations of law are of a coordinative kind. In certain respects the law may be more like a structured game, or an artistic genre, which are actually constituted by social conventions. Such constitutive conventions are not explicable as solutions to some pre-existing recurrent coordination problem. The conventional rules constituting the game of chess, for example, are not there to solve a coordination problem between potential players. Antecedent to the game of chess, there was no particular coordination problem to solve. The conventional rules of chess constitute the game itself as a kind of social activity people would find worthwhile engaging in. The constitutive conventions partly constitute the values inherent in the emergent social practice. Such values, however, are only there for those who care to see them. Constitutive conventions, by themselves, cannot ground an obligation to engage in the practice they constitute.

From a moral point of view, the rules of recognition, by themselves, cannot be regarded as sources of obligation to follow the law. Whether judges, or anybody else, should or should not respect the rules of recognition of a legal system, is ultimately a moral issue, that can only be resolved by moral arguments (concerning the age old issue of political obligation). And this is more generally so: the existence of a social practice, in itself, does not provide anyone with an obligation to engage in the practice. The rules of recognition only define what the practice is, and they can say nothing on the question of whether one should or should not engage in it. But of course, once one does engage in the practice, playing the role of judge or some other legal official, as it were, there are legal obligations defined by the rules of the game. In other words, there is nothing special in the idea of a legal obligation to follow the rules of recognition. The referee in a soccer game is equally obliged to follow the rules of his game, and the fact that the game is conventional poses no difficulty from this, let us say, “internal-player’s” perspective. But again, the constitutive rules of soccer cannot settle for anyone the question of whether they should play soccer or not. Similarly, the rules of recognition cannot settle for the judge, or anyone else for that matter, whether they should play by the rules of law, or not. They only tell us what the law is . Unlike chess or soccer, however, the law may well be a kind of game that people have an obligation to play, as it were. But if there is such an obligation, it must emerge from external, moral, considerations, that is, from a general moral obligation to obey the law. The complex question of whether there is such a general obligation to obey the law, and whether it depends on certain features of the relevant legal system, is extensively discussed in the literature on political obligation. A complete theory about the normativity of law must encompass these moral issues as well. (See the entries on political obligation and legal obligation .)

More recently, however, a number of philosophers have started to question the idea that there is something unique to the normativity of law, inviting us to see how laws might affect our reasons for action in ways that are not closely tied to the nature of law (Greenberg 2014, Enoch 2011, Marmor 2016 [2018]). Some of these views (e.g., Enoch, Marmor) purport to show that there are different ways in which the existence of various norms bear on people’s reasons for action, present in law as elsewhere, without denying that the law often makes a difference; these views only deny that there is something unique to the way law changes its subjects’ reasons for action, compared with other types normative demands. Others challenge law’s normativity from an opposite angle (Greenberg 2014, Hershovitz 2015), arguing that the only aspect of law that is of normative significance is the moral difference that it makes to people’s reasons for action.

In the last two decades of the 20th century, new challenges to general jurisprudence, and particularly to legal positivism, have taken an interesting methodological turn. This methodological turn gained momentum with the publication of Dworkin’s Law’s Empire (1986), arguing that not only the law, as a social practice, is a profoundly interpretative (and thus partly, but necessarily, evaluative in nature), but that any theory about the nature of law is also interpretative in a similar way, and thus, equally evaluative. Many of those who do not necessarily share Dworkin’s views about the interpretative nature of legal practice, or the specifics of his theory of interpretation, have joined him in this methodological skepticism about the traditional aims of general jurisprudence, that is, about the possibility of developing a theory about that nature of law that would have general application and remain morally neutral. These, and other resultant methodological challenges to traditional general jurisprudence are taken up in the next section.

It would be fair to say, however, that in the last few years, many legal philosophers have expressed a growing frustration with these traditional debates about the nature of law, calling for legal philosophy to move beyond the Hart-Dworkin debates and explore new avenues of research. Some of these new critics are content to abandon the project altogether, declaring the death of general jurisprudence (Hershovitz 2015). Others, however, are engaged in exploring new challenges. One emerging area of research concerns the artifact nature of law, aiming to learn something about the nature of law from the fact that law seems to be an artifact, created and sustained by humans for particular purposes. (See, for example, Burazin et al. eds., 2018.) Others explore connections between law’s features as artifact and fictionalism, suggesting that their underlying logic and metaphysics share a great deal in common (Marmor 2018). Another new and potentially fruitful area of research focuses on applications of philosophy of language to law, brining new developments in philosophy of language, particularly in pragmatics, to bear on questions of legal interpretation and understanding of legal content (Asgeirsson forthcoming, Asgeirsson 2015, Marmor 2014). This linguistic direction is not uncontroversial, however; some legal philosophers express skepticism about the idea that legal content is determined by linguistic factors (Greenberg 2011) and there is an ongoing debate about these issues. Finally, there also seems to be a growing interest in recent developments in metaphysics that might bear on a theory about the nature of law, and even debates about meta-metaphysics are beginning to emerge in the context of general jurisprudence, purporting to show that ways in which we think about the tasks of metaphysical inquiry may bear on ways we think about the law (Rosen 2010). For example, if the main task of metaphysics is to determine what really exists in the world, irrespective of what we think about it or ways in which we represent the world, metaphysics may not have much to say about the nature of law or, perhaps, it may indicate that only a scientific approach to jurisprudence can yield metaphysically respectable results. If, however, the task of metaphysical inquiry is also to figure out what is more foundational than something else, giving us a hierarchical structure of the world, where some things ground others, then metaphysics might be a very fruitful framework to work with in trying to elucidate the foundations of legality and legal phenomena more generally. This potential metaphysical interest in jurisprudence is at its infancy presently, and time will tell if this new approach gets us interesting results.

2. The Methodology of Jurisprudence

When it comes to the methodology of jurisprudence, we find two main issues. While one is not directly concerned with normativity, the second is. The first asks about the aims and success criteria for philosophical theories about the nature of law:

What is the target that first-order theories of law aim to capture, and when do they succeed in doing so?

The second asks about the role of evaluation in jurisprudential methodology:

Are first-order legal theories inherently or necessarily evaluative or can they be purely descriptive?

Each of these questions will be discussed in turn.

2.1 The Target of a Theory of Law

The first important class of methodological questions in jurisprudence concerns the target of first-order theories of law—that is, what phenomenon such theories aim to provide an account of. In taking a stand on what the proper target of a first-order legal theory is, one incurs a number of other methodological commitments. These include adopting a view about when such theories are successful, taking a stand on what sort of data such theories aim to systematize and explain, and determining what sorts of arguments are legitimately used in deciding between one of these theories and its competitors.

There are five main families of views on this question. One view takes jurisprudence to be a form of conceptual analysis, which is to say that theories of law aim to provide an account of some concept of law. This approach is often associated with Hart’s influential work, The Concept of Law (1994). A second sort of view adopts a more skeptical stance towards the methodology of conceptual analysis and takes theories of law to be in the business of offering a reductive explanation of law itself, not some concept of it. Another recent view sees general jurisprudence as just another branch of metanormative inquiry, which renders it continuous with other philosophical fields like metaethics. Fourth, the prescriptive view takes it that the aim of a theory of law is to specify the notion of law that it would be most desirable for us to adopt. A fifth kind of view, associated with Dworkin’s work, takes it that legal theories are in the business of offering a constructive interpretation of legal practice. In what follows, each of these five views, as well as some of the main issues they face, will be discussed in more depth.

On conceptual analysis views, theories of law aim to capture the concept of law and they succeed to the extent that they provide a coherent account of the relevant data about that concept and related concepts. In particular, the data to be systematized are taken to be people’s intuitions involving some shared concept of law (or cognate concepts like legal validity or legal obligation). In their simplest form, such intuitions can be thought of as judgments about whether the relevant concept does or does not apply to particular cases. Accordingly, on this sort of view, a theory of law aims to provide an account of the conditions under which the target concept of law (or one of its cognates) applies.

What’s more, such a theory can be arrived at by employing the method of conceptual analysis, undertaken from the proverbial armchair. The idea is that the theorist starts with a putative set of criteria for the correct application of the target concept, and then she tests this account against her intuitions about that concept. If the account entails that the concept applies to particular cases that it intuitively does not apply to, then this provides reason to reject or revise the account in question. By contrast, if the account entails that the target concept applies to certain cases and this is the intuitively correct result, this tends to provide affirmative support for the account. The account successfully captures the target concept to the extent that it yields intuitively correct results about particular cases, and does so in an explanatorily satisfying way (as opposed to an ad hoc manner). (For a more in depth discussion of the methodology of conceptual analysis as applied to the concept of law, see Shapiro 2011, 16–22.)

Jurisprudence has been influenced by two main ways of understanding the relevant intuitions (or data) that theories of law aim to systematize. This, in turn, is due to the fact that one might understand concepts themselves, and our intuitions about them, in two different ways. Accordingly, we find two main varieties of the conceptual analysis view of methodology.

The first understanding of concepts takes concept possession to be mainly a matter of linguistic competence. That is, to possess the concept of law is to know when the word “law” as used in its juridical sense (not the scientific sense) applies. Thus, intuitions about the concept of law are to be understood as linguistic intuitions about how to use the word “law.” On the present view, then, conceptual analysis is a mode of linguistic analysis. This sort of view was famously discussed in chapters 1 and 2 of Dworkin’s Law’s Empire (Dworkin 1986, 32, 43–46). It arguably traces back to the kind of ordinary language philosophy associated with J.L. Austin and Gilbert Ryle (Marmor 2013, 210–212).

However, this understanding of concept possession has drawbacks. Perhaps the biggest source of concern in the present context is that this sort of view fuels a version of Dworkin’s “semantic sting” argument (Dworkin 1986, 43–46). The argument may be summarized as follows. Suppose legal theories aim to capture the concept of law and that concept possession just is a matter of knowing when the word “law” applies. If so, the argument runs, legal theories cannot explain disagreement about the grounds of law, that is, about the conditions of legal validity. After all, if legal theories are in this way semantic in nature, then disagreement about what the grounds of law are must boil down to disagreement about when the word “law” applies—at least assuming the parties to the disagreement are not merely talking past one another. But now a dilemma arises. Either legal practitioners possess the same concept of law or they do not. If they do possess the same concept, then it seems they cannot fail to agree about what it takes for a norm to count as law. After all, they all know when the word expressing their shared concept of law applies. But this is implausible, since legal practice in fact is rife with disagreement about what the grounds of law are (and thus, what counts as law or as legal). On the other hand, if legal practitioners do not share the same concept of law, then their disagreement about what the grounds of law are must just be due to the fact that they are talking past one another. But that, too, is implausible. Legal practice, as Dworkin puts it, is not “a grotesque joke” (Dworkin 1986, 44). Accordingly, there must be something wrong with construing legal theories as mere semantic accounts of when the word “law” applies.

If, in light of this argument, we are to abandon the idea that first-order legal theories are semantic theories, there are two obvious ways to proceed. First, one might simply abandon the idea that legal theories are exercises in conceptual analysis. This was Dworkin’s preferred response, though, as we’ll see, one can reject conceptual analysis without adopting Dworkin’s own favored methodology. (More on that in sub-section 2.1.2.) Second, if one wants to still say that legal theories are in the business of analyzing the concept of law, then the obvious response to the semantic sting argument is to deny that concept possession just is a matter of knowing how the word “law” in its juridical sense is to be applied. This suggests a second, richer form of conceptual analysis that legal theorists might be engaged in.

The basic idea behind the richer view is to take it that concept possession, rather than merely being a matter of knowing when words apply, involves something meatier: namely, the possession of a wide range of substantive beliefs or intuitions about the concept, its essential features and its proper application. The assumption is that the intuitions one is disposed to have in virtue of possessing the concept of law will be fertile enough to constitute a particular substantive conception of what the law is and how it functions. The aim of a theory of law, then, would be to systematize these pre-theoretic judgments about the concept of law in order to provide an account of some substantive conception of law. (This sort of richer view of concept possession is discussed, e.g., in Raz 2004, 4–7; Stravopoulos 2012, 78–79; Shapiro 2011, 16–22. It is perhaps also the sort of view presupposed by Hart.) On this view, legal disagreement remains possible because while practitioners might all be using the same concept of law, the richness of the concept allows that they nonetheless might not possess the concept determinately enough, or understand its application conditions thoroughly enough, to guarantee consensus on theoretical questions about what the grounds of law actually are.

However, also this richer understanding of concept possession, and the meatier picture of conceptual analysis it gives rise to, has been widely criticized (Marmor 2013, 215–217; Raz 2004, 10; Leiter 2007, 177–79). One question that immediately arises is which concept of law, exactly, constitutes the proper target of a theory of law. Is it the concept of law that is possessed by the legal practitioners in a particular jurisdiction? Or is it some universally shared concept of law? Worries loom either way. If a legal theory only aims to capture the concept of law employed in a particular jurisdiction, then that would render the theory parochial and it might lose its interest for those who are not concerned with that particular jurisdiction. On the other hand, one might doubt that there really is a universally shared concept of law that is employed by practitioners in all jurisdictions—or if there is one, it is doubtful that it is anything more than the sort of thin concept that one possesses in virtue of knowing what the word “law” in its juridical sense means.

A deeper worry about all forms of conceptual analysis is the question of why we should care about anybody’s concept of law in the first place (Marmor 2013, 216–217; Leiter 2007, 177–79). After all, as philosophers, it seems that it is the nature of law itself that we care about understanding (Raz 2004, 7, 10). Granted, there are interesting sociological questions to be asked about what various groups of people believe to be the case about how law functions. But it is not obvious that there is anything distinctively philosophical about such questions. Insofar as philosophers (qua philosophers) are interested in what people believe about a given concept, this would be because understanding people’s beliefs about the concept is a route to understanding that which it is a concept of (Raz 2004, 4, 10). Accordingly, one might think that what theories of law aim to capture is not anybody’s concept of law in particular, but rather the nature of law itself. (See also the entry on concepts , section 5.2.)

A possible response to this objection is to assert that since law is a social phenomenon and is in part constituted by practitioners’ own understanding of the practice they are engaged in, collecting evidence about the concept of law possessed by legal practitioners is an especially useful way to investigate law itself (Stravopoulos 2012, 79). Still, one might wonder whether this route to investigating the nature of law itself would be the most effective strategy to employ, given its indirectness. Why limit ourselves to asking questions about concepts if law can be studied directly?

A very different response would be to adopt a Platonist account of concepts, according to which they are not mental representations at all, but rather abstract objects akin to the objects of mathematical inquiry. The concept of law, then, would be the abstract object one must grasp in order to think about law. Accordingly, it is this abstract object— the concept of law—that philosophers care about and aim to investigate using the method of conceptual analysis (cf. Bealer 1998). Nonetheless, this view of concepts faces familiar objections. For one, an account is needed of how we can have access to the concept of law, conceived of as an independently existing abstract object. Moreover, even if we can access it, a puzzle arises about how different people who all determinately grasp the concept of law could possibly end up disagreeing about its nature (Sarch 2010, 468–73). Finally, while it might be plausible that a priori disciplines like mathematics and logic aim to investigate abstract objects (see the entry on platonism in the philosophy of mathematics ), it is not clear that the investigation of a social phenomenon like the law, which is heavily dependent on human beliefs, attitudes and behavior, can be understood analogously. While mathematicians might be investigating the nature of abstract objects like numbers or sets, it seems more doubtful that legal philosophers are investigating the abstract object law .

Given the above doubts about conceptual analysis, several views have been suggested according to which first-order legal theories are primarily in the business of describing and explaining the nature of law itself , not any concept of it. Reductionist and naturalistic views fall into this category. (As noted below, such views need not completely eschew the armchair methods just sketched, but to the extent these methods remain viable, a very different explanation of their defensibility would have to be given.)

In particular, reductionist views take it that illuminating the nature of law is a matter of explaining what the law is, and how it operates, in terms of more foundational facts. As a result, first-order theories of law succeed to the extent that they accomplish this in an explanatorily powerful way (Marmor 2013). The goal of a first-order theory, on this sort of view, is to offer a metaphysical reduction of law: that is, to show that the phenomenon of law is actually constituted by, and fully reducible to, some other more foundational type of phenomenon (in the way that chemistry could in principle be reduced to particle physics). Thus construed, positivism, for example, would seek to explain the nature of law by reducing facts about what the law is, how it functions and what it requires, to more foundational social facts—e.g., about people’s behavior, beliefs and dispositions. By providing a reduction of this kind, a theory like positivism purports to illuminate the phenomenon of law itself by breaking it down into its constituents and explaining how they together make up the complex social practice that is the law. (For more on metaphysical reduction in general, see Schroeder 2007, 61–83; see also the entry on scientific reduction .)

One well-known type of reductionist view is naturalized jurisprudence. Brian Leiter has been the most prominent defender of this position (Leiter 2007). Like other reductionist views, naturalized jurisprudence takes the aim of legal theories to be to explain the nature of law itself (not anybody’s concept of it). But what is characteristic of naturalized jurisprudence is that it also insists that a purely empirical methodology should be used in doing so (Leiter 2007, 180–81, 183–99). (See also the entry on naturalism in legal philosophy .)

Naturalists might part company with adherents of other reductionist views over whether or not the armchair methods of philosophers, and related appeals to intuitions, thought experiments and the like, are misguided. The naturalist is likely to reject this mode of inquiry, while other reductionists may be more amenable to using it. A reductionist could in principle defend this sort of inquiry, for instance, by claiming that our particular-case intuitions involve a concept that we have acquired from experience with legal practice, and so such intuitions can be one useful source of information about the nature of law itself. Moreover, if legal practice (as a social phenomenon) is partially constituted by practitioners’ own beliefs and attitudes towards the practice they are engaged in, then evidence about legal practitioners’ concept of law might prove especially relevant as evidence about the law itself (Stravopoulos 2012, 79).

By contrast, naturalists tend not to endorse the armchair method of testing theories of law against intuition, given their aim of making “philosophical theorizing continuous with and dependent upon scientific theorizing” (Leiter 2007, 35). Leiter argues that our intuitions about law are too unreliable to be afforded much epistemic weight (as others have argued with respect to intuitions in other areas of philosophy) (Leiter 2007, 180, 184; cf. Cummins 1998). On Leiter’s view, philosophers generally should aim to unpack the “concepts that have been vindicated by their role in successful explanation and prediction of empirical phenomena” (Leiter 2007, 184). Thus, he suggests a methodology that “tak[es] seriously the…social scientific literature on law…to see what concept of law figures in the most powerful explanatory and predictive models of legal phenomena such as judicial behavior” (Leiter 2007, 184). This methodological view, however, raises questions about why the legal philosopher should study only judicial behavior and not something else. More generally, the naturalist owes an account of what features of law are most in need of explication and why.

A different sort of concern that arises for reductionist views (and perhaps naturalistic views as well) is that it may pose particular problems for positivism. Specifically, if law is a normative phenomenon that gives rise to legal obligations, one might worry that it is not possible to reduce legal facts (i.e., facts about what our legal obligations are) to a set of purely non-normative facts, e.g., social ones. One might think that this would impermissibly transgress the familiar (though not uncontroversial) is-ought gap. (For a discussion of this sort of worry about positivism, see Shapiro 2011, 47–49.)

In response, one route that positivists who want to be reductionists could take is to maintain that legal facts really are descriptive in nature, not genuinely normative. In particular, such positivists might claim that facts about what legal obligations we have simply are descriptive facts about what the law holds that we ought to do—not normative facts about what we really ought to do (Shapiro 2011, 188; see also Hart 1994, 110).

Another recent methodological view developed by Plunkett and Shapiro (2017) takes general jurisprudence to be just another branch of metanormative inquiry. The latter kind of inquiry as a general matter aims to explain how normative thought, talk, and entities (if any) fit into reality. Metaethics is another branch of metanormative inquiry, which focuses on how ethical thought, talk and entities fit into reality. Thus, on the present view the subject of inquiry in general jurisprudence would be legal thought, talk and entities (if any), and the aim of the field would be to explain how such thought and talk about law—as well as legal structures and legal properties (if any)—are best accounted for in one’s general philosophical view of reality. On this view, jurisprudential inquiry would be continuous with—and methodologically quite similar—to the work done in other areas of normative inquiry, especially ethics and aesthetics.

One question that arises for this position, however, concerns the extent to which this is a distinct methodology from those discussed above. If the focus of one’s metanormative inquiry is legal thought and talk, we seem to get rather close to the conceptual analysis picture of how jurisprudence should proceed. On the other hand, if the focus of inquiry emphasizes how legal entities or properties fit into reality in general, then the view ends up seeming rather close to the naturalist position that the topic of jurisprudential inquiry is phenomenon of law itself. Nonetheless, perhaps a particular attraction of the metanormative view is that it can show how both the conceptual analysis picture and the naturalist picture capture distinct pieces of the bigger enterprise of the task that jurisprudence is engaged in. Thus, rather than purporting to replace the other methodologies discussed above, the metanormative view, if sound, would do away with there being a privileged starting point for jurisprudential inquiry (such as metaphysics of legal content, the semantic analysis of legal statements, or the nature of legal obligations).

A different sort of approach to methodology in jurisprudence takes it that the proper aim of a legal theory is to specify a substantive conception of law that it would be especially desirable for people to adopt. Moreover, even if the conception of law that this inquiry ends up supporting departs radically from our pre-theoretical understanding of law, then the resulting theory would recommend abandoning that prior understanding of law. Accordingly, if jurisprudence is chiefly a prescriptive endeavor, then theories of law might end up being radically revisionist in nature (though, of course, not necessarily).

As explained in the next sub-section, Dworkin’s methodological view incorporates some prescriptive elements. But one prominent advocate of an exclusively prescriptive project is Neil MacCormick (MacCormick 1985; see also Campbell 1996; Murphy 2001; Postema 1989; Schauer 1996; Waldron 2001). MacCormick argues that there are compelling normative arguments in favor of adopting a positivist conception of law. In particular, he suggests that values like autonomy and freedom of conscience demand that the law not regulate with a heavy hand “the sphere of aspirational values, of duties of self-respect and of duties of love,” a sphere that concerns “questing for the good beyond duty, or for the right lines of development of a self, or for the proper regard to bestow upon one’s family, friends or neighbors” (MacCormick 1985, 35–36). Values like autonomy and freedom of conscience, McCormack thinks, support the claim that at least within this sphere of conduct, it is desirable to keep the question of what the law requires entirely separate from the question of what morality requires. (However, MacCormick also allows that the law properly can regulate the sphere of “duties of justice,” as these duties are in some sense weightier (MacCormick 1985, 35).) Accordingly, at least in some spheres of conduct, the question of what the law is ought to be held distinct from the question of what morality requires. Thus, MacCormick seems to be offering a normative argument for a claim that has often been associated with positivism, namely a version of the Separation Thesis. (Though, as seen earlier, it is not clear that all positivists must be committed to a strong version of this thesis.)

While the question of what conception of law it is most desirable that people adopt is surely a significant one, it is important to note that the prescriptive view of methodology in jurisprudence is not genuinely in competition with either the conceptual analysis view or the reductionist approach. After all, it might turn out, for example, that positivism provides the best account of our concept of law, or perhaps is the best reductive account of the phenomenon of law itself, even though there are compelling normative arguments for changing the practice or adopting a new concept of it that, say, comports with natural law theory. Accordingly, accounts of the concept of law, or reductive theories of law, are not necessarily inconsistent with prescriptive accounts of what legal theory it would be most desirable from the moral point of view to adopt.

A final methodological view, which deserves separate treatment both because of its influence and sophistication, is Dworkin’s (Dworkin 1986). This view takes it that (i) the target of a first-order theory of law is existing legal practice and (ii) these theories succeed to the extent that they offer a defensible constructive interpretation (in Dworkin’s sense) of that practice. According to the constructive interpretation view, the aim of a first-order theory of law is not to analyze any concept or to reduce legal facts to other more foundational facts. Rather, the aim of a legal theory is to reconstruct the behavior and self-understandings of participants in legal practice and, moreover, to do so in a way that casts this practice in its best moral light. As a result, a theory of law is more successful the better it both fits with the data about how legal practitioners understand the practice they are engaged in, while also normatively justifying that practice (Dworkin 1986; Perry 1995, 129–31; see also the entry on legal interpretivism ).

One concern about the constructive interpretation view of methodology in jurisprudence is that it may not be in genuine competition with either the conceptual analysis or reductive views of methodology. After all, one sort of project is to explain what law actually is and how it operates (perhaps according to our concept of it). But it is a very different sort of project to explain how we should conceive of the law in order for legal practice to be normatively justified. It seems possible that our account of what law actually is tells us one thing (e.g., that certain features of it are essential and others not), while our account of what law should be like in order for the practice to be as justified as possible tells us to think of law in a rather different way (e.g., as having different essential features). Accordingly, some have argued that the constructive interpretation view engages with the other methodological views mentioned above only if it denies what they assert: viz., that legal theories attempt to provide an explanation (perhaps of some particular kind—e.g., reductive) of the actual nature of law (or perhaps our concept of it).

One way that adherents of the constructive interpretation view might deny what certain other methodological views assert is by denying that it is even possible to give a reductive explanation of law. (For discussion, see Marmor 2013, 218.) The thought would be to claim that law is a normative practice, and normative facts cannot be reduced to purely non-normative facts without losing something essential. In response, the reductionist might either deny that legal facts are genuinely normative (in which case the sought-after reduction would be unproblematic), or she might assert that any successful reduction will have to reduce legal facts to a set of facts that includes normative facts (in which case a version of natural law theory might appear attractive).

2.2 Is Legal Theory Inherently Evaluative?

A second widely-discussed question about jurisprudential methodology is whether first-order legal theories are inherently evaluative. The above views about the proper target of first-order theories of law have different implications about this second question. But before explaining that, we must first get the relevant question more clearly in view.

To begin with, one might wonder where the interest in the question of whether legal theory is inherently evaluative comes from. Some of this interest likely traces to the skeptical worry that legal theories purporting to be purely descriptive in fact are pushing some hidden ideological or political agenda. (For more on this, see, e.g., John Gardner’s introduction to Dickson 2004.) A second source of the interest in this question may be the suspicion (or hope) that if legal theory proves to be inherently evaluative, that would be an independent reason to adopt some version of natural law theory. Whether this is so remains doubtful, however, since meta-questions about the methodology of legal theory prima facie seem to be independent of questions in first-order legal theory like what the determinants of the content of law are. What is more, legal scholars might be drawn to the present issue through consideration of Dworkin’s argument that there is a very tight connection between the evaluative nature of theorizing about the law and the evaluative nature of law itself, rendering the content of law inevitably dependent, at least in part, on moral-political considerations. Regardless of the motivations for engaging in the debate about whether legal theory is inherently evaluative, however, this debate has taken on independent significance and has been a fruitful source of insight in its own right.

To avoid confusion, the question we are concerned with here must be clarified in several ways. For there are a number of uncontroversial ways in which legal theory plausibly is or might be evaluative, and these do not go to the heart of the methodological debates in jurisprudence.

First, there are several trivial ways in which legal theory, like theories about any topic , plausibly cannot be entirely value-free. In particular, it seems that one cannot engage in the business of theorizing about law without evaluating the extent to which various theories are coherent, simple, clear, elegant, comprehensive, and so on (Dickson 2004, 32–33). Granted this means that legal theorists must engage in a form of evaluation. But there is nothing special about legal theory in this regard. After all, these meta-theoretical virtues are criteria for the success of theories about any subject matter.

A second seemingly uncontroversial way in which legal theory is evaluative is that one cannot begin to develop a theory of law without determining which of its central features are to be accounted for (Dickson 2001, 38–45). John Finnis, for example, argues that one cannot do first-order legal theory without taking a stand on what the important features of law are that adequate theories must explain (e.g., the law’s claim to authority). However, this seems to require evaluation (Finnis 1980, 9–15).

Nonetheless, it is not likely to be especially controversial that legal theory is evaluative in this way. To see why, distinguish between (a) thick evaluative claims , which predicate some kind of moral goodness, or perhaps all-things-considered value, of an item and (b) thin evaluative claims , which do not. (This distinction roughly tracks Julie Dickson’s distinction between directly evaluative propositions and indirectly evaluative propositions. See Dickson 2001, 51–55.) Thus, the simplest thick evaluative claims have the form: \(X\) is morally [all-things-considered] good [bad] . Such claims might also be comparative in nature, such that they have the form: \(X\) is morally [all-things-considered] better [worse] than \(Y\). By contrast, thin evaluative claims judge how well some item fares relative to a standard that is neither moral nor all-things-considered normative. Such claims do not entail any thick evaluative claims either. Examples of thin evaluative claims thus would include “\(X\) is important” and “\(X\) is interesting”. Accordingly, even if legal theorists must make thin evaluative claims in order to be able to begin the project of developing a first-order legal theory, this does not mean that they must make thick evaluative claims in order to do so. After all, one might construct a theory that captures a range of legal phenomena that are deemed central or important, while still remaining agnostic about whether these phenomena are themselves valuable.

A third way in which legal theory could in principle be evaluative, though uncontroversially so, is suggested by the prescriptive view discussed in section 2.1.3. If the job of a first-order theory of law is to identify the concept of law it would be most desirable for us to employ, then there is a sense in which the resulting theory of law would of course be evaluative. Nonetheless, as seen above, prescriptive theories aim to answer a different question from theories in the conceptual analysis, reductive or interpretive categories. Thus, what matters to the debate about whether legal theory is evaluative is not whether legal theory in principle could be evaluative, but whether it is inevitably or necessarily so.

Now we are in a position to fully appreciate the question of primary interest here. In particular, it is whether theories about the nature of existing legal practice (or perhaps our concept of it) necessarily involve or entail thick evaluative claims about the law. That is, does offering a first-order theory of law of either the conceptual analysis, reductive or constructive interpretation varieties require one to accept claims about how valuable the law, or some feature of it, is? This is the question to be discussed in the remainder of this entry.

Some answers to the question that was discussed in section 2.1 suggest that theories of law are inherently evaluative in the sense of committing advocates of these theories to thick evaluative claims about the law. As we will see, this is most plausibly the case on the constructive interpretation view of methodology. By contrast, other answers to the question discussed in section 2.1 do not obviously entail that first-order legal theories commit their proponents to thick evaluative claims. In particular, this is the case for the conceptual analysis and reductive views of jurisprudential methodology. At least on their face, both these views seem to allow that there can be purely descriptive accounts of law—i.e., accounts that capture the central features of law without being committed to any moral or all-things-considered evaluation of the law. After all, one might think that a particular account does a good job of capturing some widely shared concept of law, but this does not obviously commit one to saying that law, on this concept of it, is good . Likewise, one might endorse a reduction of legal facts to some more foundational set of facts (e.g., certain social facts) without this committing one to thinking that the law is valuable or morally justified.

As a result, at least on their face, both the conceptual analysis and reductive views seem to allow that there can be first-order theories of law that are purely descriptive. Some argument would be needed if one is to endorse the opposite conclusion. Accordingly, let us consider some prominent arguments for thinking that legal theory must be inherently evaluative in nature. (For an overview, see Marmor 2011, 122–35.)

The argument from legal functions

One central argument to the effect that legal theory must be evaluative in the relevant sense begins from the idea that understanding what the law is requires taking a view about what functions it serves (Finnis 1980, 12–17; Perry 1995, 114–20). Moreover, one might think that functions are evaluative in the sense that attributing a function to something is to endorse a standard by which that thing may be judged as successful or unsuccessful. In this way, one might think that legal theory, too, is inherently evaluative.

While this line of thinking plausibly shows that legal theory requires accepting some evaluative claims, it does not obviously show that legal theory necessarily involves thick evaluative claims (Dickson 2001, 114–125). Claims of the form “the function of \(X\) is \(F\)” are naturally classified together with “\(X\) is important” (or more precisely, “\(X\) is important for some purpose \(Y\)”) as thin evaluative claims. Accordingly, asserting that the function of law is \(F\) does not obviously entail any thick evaluative claims about law. After all, it is not obvious why attributing a function to something requires believing that performing that function is either all-things-considered or morally good . Thus, attributing a function to law need not entail any thick evaluative claims.

The argument from the internal point of view

A second natural argument in favor of seeing legal theory as inherently evaluative in the relevant sense relies on the idea that any adequate theory of law must take account of the internal point of view that legal practitioners tend to adopt towards the law. More specifically, taking the internal point of view towards the law is a matter of adopting some kind of attitude of endorsement towards it, seeing it as in some sense justified or as providing reasons for action (Shapiro 2011, 96–97; Perry 1995, 99–100; see also the entry on legal positivism ). Moreover, it is common to think that a critical mass of the participants in legal practice must adopt the internal point of view towards the practice in order for the practice to genuinely count as law. This is a fact that any adequate theory of law must account for, one might think. Accordingly, since the internal point of view involves a positive evaluation of the law, and since any adequate legal theory must account for this point of view, one might infer that any adequate theory of law must itself be inherently evaluative. (One finds versions of such an argument, e.g., in Perry 1995, 121–25; Waldron 2001, 423–28.)

It is unclear whether this argument succeeds, however. After all, it seems in principle possible to explain what kinds of considerations legal practitioners endorse, and why, without oneself endorsing those considerations. Similarly, a first-order legal theory might be able to plausibly explain the truism that legal practitioners tend to take the internal point of view towards (i.e., endorse) the law in their respective jurisdictions without the theory thereby being committed to the claim that the law in any particular jurisdiction (or the law in general) is valuable or justified. Accordingly, it is not obvious why a theory of law cannot in principle capture the internal point of view taken by legal practitioners towards the law without itself being committed to any thick evaluative claims about the law.

The argument from interpretation

Probably the most influential argument for thinking that legal theory is inherently evaluative proceeds from the idea that legal theory is an interpretive endeavor in Dworkin’s sense (Dworkin 1986; for criticism, see Dickson 2001, 105; Marmor 2011, 126–30). To say that legal theory is an interpretive project is to claim that fully understanding what the law is requires construing it as the best instance it can be of the type of thing that it is. Moreover, one might think that in order to construe legal practice as the best instance of the kind of thing that it is requires making thick evaluative claims about the law. (See the entry on legal interpretivism .)

One might attempt to respond to this argument in two ways. A natural, though ultimately unsuccessful, reply is that construing something as the best instance of its kind that it can be does not require taking that kind to be good . Saying that Bernie Madoff was (for a time) the best fraudster in history does not entail that one approves of fraud. As a result, saying that the law must be thus-and-so in order to be a good instance of its kind does not commit one to any thick evaluative claims. Nonetheless, there is a deeper or more interesting sense in which Dworkin’s view renders legal theory inherently evaluative. For Dworkin, legal theory is an interpretive enterprise, and offering a constructive interpretation of legal practice requires construing it in its best moral light . Thus, offering an interpretation of legal practice would require taking a stand on which of the available ways of construing that practice is morally better than the others. Of course, this does not necessarily require asserting that the law, on any particular construal, is good —full stop. But it does seem to require at least saying that some construals of legal practice are morally better than other construals would be. This looks to be a thick evaluative claim, albeit a comparative one. Moreover, one cannot make such comparative judgments without having a view about what would make one construal of legal practice morally better than another. Thus, in at least this sense, taking legal theory to be an endeavor that is interpretive in Dworkin’s sense would make legal theory count as inherently evaluative in the sense we are concerned with here.

Accordingly, if one wants to maintain the possibility of purely descriptive first-order legal theories, a more promising strategy for responding to the argument from interpretation would be to question its key premise—viz., that legal theory necessarily is an interpretive endeavor in Dworkin’s sense. In order for a proponent of the argument from interpretation to assert this premise, some rationale would have to be given for it. That is, some argument would be needed to explain why we should think that understanding law requires giving a constructive interpretation of it. A critic of the argument from interpretation, then, might claim that the argument’s proponents have not carried their burden of providing a rationale for this premise, on which the argument crucially depends.

One possible rationale that might be offered here is that since social practices essentially involve communication, and understanding any form of communication necessarily involves interpreting speakers’ claims, understanding the social practice of law necessarily involves interpreting it. However, this rationale is too quick. Even if it is true that understanding any social practice requires interpretation of some kind or other , it does not follow that doing so requires a constructive interpretation in Dworkin’s sense —i.e., identifying a construal of the practice that casts it in its best moral light (Marmor 2011, 127–28). But the latter claim, of course, is what proponents of the argument from interpretation need to establish in order to reach their desired conclusion that legal theory is inherently evaluative.

Accordingly, we seem to be left in the following dialectical situation. Whether or not legal theory is inherently evaluative in the relevant sense depends on whether the argument from interpretation succeeds. Whether that argument succeeds, in turn, depends on its key premise, i.e., the claim that understanding the law necessarily requires giving a constructive interpretation of it. If a non-question begging argument can be given for this claim, then there would be reason to think that legal theory necessarily is evaluative in nature. By contrast, if no non-question begging argument can be given for thinking that understanding law requires a constructive interpretation, then one would be free to maintain that there can be purely descriptive first-order legal theories.

Of course, even if the argument from interpretation fails and purely descriptive legal theories remain possible , it could still be a worthwhile project to attempt to give a constructive interpretation of legal practice, and the output of this project would indeed be a partially evaluative theory. Nonetheless, these two types of theory would not genuinely be in conflict, as they would be addressed to answering different questions. In the end, therefore, “methodological pluralism” may be the most apt characterization of the state of play in jurisprudence.

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How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

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Austin, John | Bentham, Jeremy | concepts | feminist philosophy, interventions: philosophy of law | Hobbes, Thomas: moral and political philosophy | law: and language | legal obligation and authority | legal reasoning: interpretation and coherence in | legal rights | limits of law | mathematics, philosophy of: Platonism | naturalism: in legal philosophy | nature of law: interpretivist theories | nature of law: legal positivism | nature of law: natural law theories | political obligation | reduction, scientific

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Essay on Natural Law

Related Papers

Gottfried Heinemann

Palgrave Communications

Frédéric Ducarme , Denis Couvet

The idea of 'nature' is at the very core of science, considered as its flagship and deepest link with human societies. However, while nature preservation has become a major social concern , the idea of nature remains elusive. We examine here the origins, etymology, and historical semantics of this word and its different meanings in contemporary European languages. It appears that this word aggregated successively different and sometimes conflicting meanings throughout its history. One of the main present occidental meanings of "nature", designating what is opposed to humans, currently used in public policies, conservation science , or environmental ethics, hence appears rare and recent, and contradictory with most other visions of nature, including former European representations and contemporary foreign ones. Nature preservation ought to take into account this semantic diversity when proposing policies, integrating the relativity and potential inaccuracy of the currently dominating occidental definition.

Medium -- The Apeiron Blog

Shane J Ralston

What is the nature of nature? Why do humans construct moral orders grounded upon natural orders? What would motivate philosophers to derive normative authority from divine or otherwise nonanthropomorphic sources in nature? Why, for instance, did the drafters of the U.S. Declaration of Independence invoke natural rights (life, liberty, and happiness — obviously inspired by Locke’s life, liberty, and property) to ground their objections to British colonial rule? They could have just relied on good old-fashioned human reason and rhetorical argument. Answering these and related questions about the relationship between moral and natural orders demand a precise method of inquiry.

Philosophy and Society

Miroslav Vacura

The concept of natural law is fundamental to political philosophy, ethics, and legal thought. The present article argues against reductionist view of natural law and shows that as early as the ancient Greek philosophical tradition, three main ideas of natural law existed, which run in parallel through the philosophical works of many authors in the course of history. The first two approaches are based on the understanding that although equipped with reason, humans are nevertheless still essentially animals subject to biological instincts. The first approach defines natural law as the law of the strongest, which can be observed to hold among all members of the animal kingdom. The second conception presents natural law as the principle of self-preservation, inherent as an instinct in all living beings. The third approach, also developed in antiquity, shifts the focus to our rationality and develops the idea of natural law as the law of reason within us. Some Christian thinkers who consider the origin of reason in us to be divine identify the law of reason inherent in us with God’s will. This paper gives a brief exposition of the development of these three concepts of natural law in the philosophical tradition with emphasis on the intertwining of these three concepts, which we, however, understand as primary and essentially independent. The paper concludes with an overview of 20th-century authors who exclusively focus on only one of the three concepts. The aim of this article is to argue against these one-sided interpretations mostly based on Thomistic tradition and to uphold the independence and distinctness of the three historical conceptions of natural law.

Naturalism in Question, Cambridge, MA: Harvard University Press

David Macarthur

Francesco Viola

Juliano do Carmo , Adriano N . de Brito , Leonidas Taschetto

The basic assumption present in these articles is that naturalism is highly compatible with a wide range of relevant philosophical questions and that, regardless of the classical problems faced by the naturalist, the price paid in endorsing naturalism is lower than that paid by essentialist or supernaturalist theories. Yet, the reader will find a variety of approaches, from naturalism in Moral Philosophy and Epistemology to naturalism in the Philosophy of Language, Philosophy of Mind and of the Aesthetics.

Research Handbook on Natural Law Theory

Constance Youngwon Lee

Interacting Minds in the Physical World

Alin C Cucu

The thesis of this chapter is that the notion of ‘laws of nature’ has Christian origins, and that modern science and philosophy have adopted it while eviscerating it of its theistic roots, thereby bequeathing to us the almost tyrannical ideology of laws without a lawmaker and thus without exceptions.

David Forte

Modern science has developed the notion of &quot;natural laws&quot; to describe the apparent sequential patterns of the most complex parts of the physical world. But it cannot tell us what we ought to do about arms production, or human sexuality or abortion or race, or death. Non-teleological science can no more tell us that nuclear fusion is immoral than it can tell us what is the natural purpose of the solar system. Natural Law, however, can tell us what ought to be done in light of the nature of law. If indeed the nature of law is that it is directed toward the accomplishment (actualization) of the proper (just) ordering (a rational and effective structure) of relations (social interactions) among men (human persons in their various states of being), then we can make justifiable evaluative judgments. We can logically call laws good or bad, just or unjust, wise or stupid. What natural laws cannot do, natural law is equipped to do.

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Natural Law Theory: Contemporary Essays (Clarendon Paperbacks) Paperback – December 8, 1994

• Print length 384 pages
• Language English
• Publisher Clarendon Press
• Publication date December 8, 1994
• Dimensions 8.5 x 5.51 x 0.85 inches
• ISBN-10 0198235526
• ISBN-13 978-0198235521
• Lexile measure 1470L
• See all details

Editorial Reviews

About the author, product details.

• Publisher ‏ : ‎ Clarendon Press; Revised ed. edition (December 8, 1994)
• Language ‏ : ‎ English
• Paperback ‏ : ‎ 384 pages
• ISBN-10 ‏ : ‎ 0198235526
• ISBN-13 ‏ : ‎ 978-0198235521
• Lexile measure ‏ : ‎ 1470L
• Item Weight ‏ : ‎ 15.8 ounces
• Dimensions ‏ : ‎ 8.5 x 5.51 x 0.85 inches
• #7,657 in Political Philosophy (Books)
• #11,115 in History & Theory of Politics

About the author

Robert p. george.

Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He served as chairman of the United States Commission on International Religious Freedom (USCIRF), on the President’s Council on Bioethics, as a presidential appointee to the United States Commission on Civil Rights, and as the U.S. member of UNESCO’s World Commission on the Ethics of Scientific Knowledge and Technology (COMEST). He is a former Judicial Fellow at the Supreme Court of the United States, where he received the Justice Tom C. Clark Award. His scholarly articles and reviews have appeared in such journals as the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the American Journal of Jurisprudence, and the Review of Politics.

Professor George is a recipient of many honors and awards, including the Presidential Citizens Medal, the Honorific Medal for the Defense of Human Rights of the Republic of Poland, the Canterbury Medal of the Becket Fund for Religious Liberty, the Sidney Hook Memorial Award of the National Association of Scholars, the Philip Merrill Award of the American Council of Trustees and Alumni, the Bradley Prize for Intellectual and Civic Achievement, the Irving Kristol Award of the American Enterprise Institute, and Princeton University’s President’s Award for Distinguished Teaching. He has given honorific lectures at Harvard, Yale, Oxford, University of St. Andrews, and Cornell University. He is a member of the Council on Foreign Relations, and holds honorary doctorates of law, ethics, science, letters, divinity, humanities, law and moral values, civil law, humane letters, and juridical science. A graduate of Swarthmore College, he holds J.D. and M.T.S. degrees from Harvard University and the degrees of D.Phil., B.C.L., and D.C.L. from Oxford University.

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Natural Law Essays

Christian influences on natural law in augustine’s thought, is the christian conception of natural law indispensable to a coherent moral theory of the state, two rival ethical theories: the ethical egoism and the natural law moral theories, ideas of aristotle on equity, popular essay topics.

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The Tradition of Conservative Humanism

As a tradition, conservative humanism has sought to balance the parochial and the universal.

We thank Professor James Stoner for his review of our book, The Wisdom of Our Ancestors: Conservative Humanism and the Western Tradition . Though he has kind things to say, he also thinks it has conceptual weaknesses. The book, Stoner argues, functions only as a “camino” towards good conservative authors rather than being itself a developed conservative philosophy. Stoner finds no “systematic argumentation” for a conservative political philosophy. Hampering our efforts is the “traditionalist Catholicism that serves as their touchstone” which ensures that our “condemnation of liberalism goes too far.” We welcome the cut and thrust of intellectual debate. But we think Stoner misrepresents three crucial aspects of the book on the topics of the Enlightenment, work, and nationalism.

The Enlightenment

Despite our extensive use of the Scottish Enlightenment, Stoner seems to think our “traditionalist Catholicism” blinds us to the epoch´s evident goods. Perhaps Stoner’s most serious charge is the claim that we believe Western civilization must be defended from Enlightenment liberalism. Our consideration of the Enlightenment is not one of facile rejectionism. Rather we aim to sift the era´s complex contours to parse its relationship with the broader truths of the Western tradition.

Conservatism drawing on ancestral wisdom must reject any simple, linear progressivist notion of history (e.g. Condorcet)—a conception one might think modern history itself has refuted. But we offer praise for those positive elements in the liberal Enlightenment tradition—economic prosperity, religious toleration, humane legal reforms, and respect for freedom of conscience. Niall Ferguson has impressively shown how institutions associated with the Enlightenment—property rights, competitive mechanisms, the valorization of science and technology, inter alia —are responsible for the “Great Divergence” that made Western societies the most materially prosperous in the world.

But our pride in these accomplishments must be tempered with that Socratic and Christian wisdom that understands that material prosperity is a subordinate value to spiritual and moral goods. Liberalism´s conception of liberty risks becoming mere license if not tempered by those great moral virtues that the West´s classical and Christian traditions inculcate. This was recognized by Alexander Hamilton who saw the French Revolution´s attacks on Christianity as a mortal threat to the self-governing society for “morality overthrown (and morality  must  fall with religion) the terrors of despotism can alone curb the impetuous passions of man.” If this is right, then the strength of those intermediary communal institutions that our conservatism emphasizes—religion, family, and education—is particularly necessary to forge the moral bonds of a free society.

The most problematic issue to emerge from the most radical strains of the Enlightenment (D´Holbach, Helvetius) is a militant, secular humanism that presumes to exalt man by displacing God. It was this strain that was responsible for unleashing the violent anti-Christianity of the French Revolution from which the modern West still suffers. Trying to build humanism on the edifice of atheistic materialism is a fool´s errand, for by definition atheistic materialism denies any transcendent human dignity. This is admitted with great consistency by one of contemporary materialism´s most acclaimed spokesmen, Yuval Harari, for whom freedom is a Christian myth, another fiction like God, the soul, and human rights. This is a dangerous path for modernity to travel, since practice tends eventually to quadrate with belief.

Stoner thus reads our book through the odd lens of the Enlightenment as a kind of revelatory event that stated the final truth about man and history, with all else a mere pre-figuration. Scanning the history books, we find no such Enlightenment. Eighteenth-century thinkers wrestled over the worth of the austerity of the Commonwealth republican tradition and the new enthusiasm for commercial luxury. Politically, there were riots, suppressions, and finally, revolutions as partisans of these positions sought ascendancy. We think human dignity is threatened by Victorian vitalistic accounts of capitalism. We see this in economism, the excessive exaltation of temporary economic value over family and spirituality.

Conservatism must reject both a cosmopolitanism that denies particularistic loyalties to family, community, and nation and a nationalistic tribalism that denies universal moral principles.

We include a chapter on the Scottish Enlightenment as part of the conservative humanist tradition because its treatment of commerce articulated a balance between personal freedom and solidarity. Stoner thinks our defense of establishment and privilege “will not sit well with democratic prejudices.” As we make very clear, time and again, by establishment and privilege we mean the social institutions and practices that embody and affirm the hierarchy of value. The division of labour, which Smith places at the heart of the Enlightenment understanding of the economy, is a case in point, as we explain.

Nationalism

Stoner thinks we have two “enemies:” one is Enlightenment liberalism, and the other is nationalism. But nowhere do we say that Enlightenment liberalism or nationalism are enemies. We do say that the  extremes  of liberal cosmopolitanism, which falsifies the hold of particular social loyalties over us, and nationalism, which can be claustrophobic and intolerant, are corrosive of good order. In short, we highlight a living tradition of conservative political philosophy that avoids these two corrosive political temptations. We observe that conservatives, like Burke, criticized dynamics within the Enlightenment tending to abstract, “geometric” thinking, a monism falsifying the geographical and historical communities that have served peoples well. Conservatives, like Metternich, also criticized nationalism for prioritizing particularism at the cost of transnational shared identities and common mores essential to diplomacy. Catholicism built Christendom, a phenomenon still marking out the geopolitical behemoth that is Europe and the value order of the West more generally. We believe this complex phenomenon is worth defending. Conservatism must reject both a cosmopolitanism that denies particularistic loyalties to family, community, and nation and a nationalistic tribalism that denies universal moral principles like the natural law.

As a tradition, conservative humanism has sought to balance the parochial and the universal. We grant the power of David Hume’s idea that human beings are partial to what is nearest and most familiar to them. This is the idea of home eulogized by Scruton and affirmed by the theological idea of the order of charity which argues that our loves are first for our families and nations, and then a general benevolence. It is also why we include a chapter on natural law. The order of charity is part of Aquinas’s juristic treatment of the inclinations, those appetites for human goods common to all peoples. Stoner laments that we present the “traditional” account of natural law rather than its updated version in John Finnis’s classic Natural Law and Natural Rights . We do not concede this presentism and, as we state, the point of the natural law chapter is both to show its historical place in the tradition of conservative humanism and to show that five common conservative criticisms of natural law do not work.

Finally, Stoner thinks we do not give an account of how, according to us, the humanistic ancestral wisdom in Western letters went sour in modernity. That question is left “pending,” he says. But nowhere do we contend that there was a Golden Age of conservative humanism. Rather, we argue that all political philosophy—ancient, medieval, and modern—experiences a double tension. All systems of thinking must wrestle with monism and pluralism. This is seen in the current tension between globalization and multipolarity. The former is the neo-liberalism of a one-size-fits-all enlightened bureaucracy of global governance and the latter is the now-gaining-momentum of nationalism, civilizational states, and polycentric orders. We propose conservative humanism as a needed force of moderation based on a balancing of polarities.

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After My Brother’s Overdose Death, Misinformed People Added to Our Grief

By John Woller

Dr. Woller is an internist in Baltimore.

On a crisp December morning in my small Southern hometown, my mother found my brother unresponsive in his bed. She knew she was too late. His body was cold, stiff and blue. Blood had pooled on one side of his face, causing it to swell. After her initial panic and calls to my father and 911, she was alone with my brother. She instinctively did what any mother would do: She covered him with blankets and lay down with him. She wanted to hold her son one more time.

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ISP Publishes Collection on Artificial Intelligence and the Digital Public Sphere

The Information Society Project (ISP) at Yale Law School has launched “ Artificial Intelligence and the Digital Public Sphere ,” a collection of five essays that explore how the advent of artificial intelligence (AI) stands to impact the digital public sphere. Edited by Elisabeth Paar and Gilad Abiri, this is the fourth collection in the ISP’s Digital Public Sphere white paper series.

“AI has challenged power dynamics and social structures within societies around the globe in subtle yet drastic ways,” said Elisabeth Paar, one of the editors of the collection. “These essays help to illuminate the complexity of this (re)shaping process, focusing on implications of AI on the digital public sphere.”

The collection brings together essays by leading scholars to demonstrate how AI systems, far from being neutral tools, are imbued with the power to shape social identities, legal frameworks, labor relations, and the very fabric of our shared digital space. 

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The Digital Public Sphere series is published in collaboration with the Yale Journal of Law and Technology (YJOLT) and has been generously supported by the John S. and James L. Knight Foundation.  

The Information Society Project is an intellectual center at Yale Law School. It supports a community of interdisciplinary scholars who explore issues at the intersection of law, technology, and society.

In the Press

Academic freedom and free speech, defense secretary’s intervention in 9/11 cases faces judge’s scrutiny, congress, the courts, and the expansion of presidential authority with harold hongju koh, schumer’s presidential immunity fix will only make things worse, related news.

Majority World Initiative Presents Scholarship on Online Propaganda and Social Media

Lessons in Leadership: A Q&A with Luke Bronin

Real-World Experience Fuels Professor Dan Esty’s New Climate Change Course