Although I confess to having chosen my title for today with a view to taking advantage of the resonances it would suggest with Elizabeth Anscombe’s famous paper, my purpose is distinctly different from hers. In “Modern Moral Philosophy,” Professor Anscombe lamented the state of the discipline and sought (with some success, as things turned out) to redirect it to its Aristotelian roots.  Modern legal philosophy, as I see it, began badly—precisely because it incorporated some of the key defects in the understanding of practical reasoning that Anscombe identified as afflicting moral philosophy in its then dominant forms.

But Anglo-American analytic jurisprudence has in the past sixty years largely overcome these defects and gotten itself on track.  An assessment of the condition of modern legal philosophy need not be a lament, nor (I’m glad to say) need the assessor adopt the stance of a prophet recalling the wayward from the path of perdition.

There is a sense in which modern legal philosophy began on January 8, 1897.  Oliver Wendell Holmes, then a justice of the Supreme Judicial Court of Massachusetts, spoke on that day at a ceremony dedicating the new hall of the Boston University School of Law.  In his remarks, which were published the following Spring in the Harvard Law Review under the title "The Path of the Law,"

Holmes purported to debunk the jurisprudence of the past and propose a new course for modern jurists and legal scholars.  Holmes's themes—the question of law's objectivity and the relationship between law and morality—have preoccupied legal philosophy ever since.  This afternoon, I propose to survey the treatment of these themes by some influential twentieth century British and American legal philosophers and jurists and make some observations about where we find ourselves today.

Let us begin by examining Holmes's own treatments of his themes.  The opening sentence of his lecture invited his audience—lawyers, law professors, and law students—to consider what it is we study when we study law.  We are not, he said, studying a "mystery," but, rather, "a well known profession" (p. 61).  People are willing to pay lawyers to advise and represent them because "in societies like ours the command of public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees" (p. 61).

Now, this is a fearsome power.  So, "people will want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger if to be feared" (p. 61).  The object of the study of law, therefore, "is prediction, the prediction of the incidence of the public force through the instrumentality of the courts" (p. 61).

This was the thesis of "The Path of the Law."  It was intended, I believe, as a provocation.  And, so, Holmes formulated it in provocative ways:

A legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court (p. 458).

The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law (p. 461).

The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it,--and nothing else (p. 462).

Of course, provocation is effective only to the extent that one obscures one's intention to provoke.  And so Holmes claimed merely to be proposing a "business-like understanding of the matter" (p. 459).  And such an understanding, he insisted, requires us strictly to avoid confusing moral and legal notions.

This is difficult, Holmes suggested, because the very langauage of law—a language of "rights," "duties," "obligations," "malice," "intent," etc.—lays a "trap" for the unwary.  "For my own part," he declared in another famously provocative sentence, "I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law" (p. 464).

Holmes's implicit denial of law's objectivity is not unconnected to his insistence on the strict separation of moral and legal notions.  "One of the many evil effects of the confusion between legal and moral ideas," he stated, "is that theory is apt to get the cart before the horse, and to consider the right or the duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are added afterward" (p. 458).  A corrective, according to Holmes, was to adopt the viewpoint of a "bad man" when trying to understand the law as such.

If you want to know the law, and nothing else, you must look at it as a bad man, who cares only for the material consequences which [legal] knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside it, in the vaguer sanctions of conscience (p. 459).

And what exactly is being corrected by adopting the bad man's point of view?

You will find some text writers telling you that [the law] is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions.  But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact (pp. 460-461).

"I am," Holmes declared, "much of his mind.  The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law" (p. 461).

Still for all his skepticism—legal and moral—Holmes denied that his was "the language of cynicism" (p. 459).

The law is the witness and external deposit of our moral life.  Its history is the history of the moral development of the race.  The practice of it, in spite of our popular jests, tends to make good citizens and good men.  When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law (p. 459).

Going still further, Holmes claimed to "venerate the law, and especially our system of law, as one of the vastest products of the human mind" (p. 473).  It was not, he assured his reader, disrespect for the law which prompted him to "criticise it so freely," (p. 473) but rather a devotion to it which expresses itself in a desire for its improvement (p. 474).

Holmes's aim was merely, he said, to expose some common fallacies about what constitutes the law.  For example, some people—

Holmes doesn't tell us who they are—hold that "the only force at work in the development of the law is logic" (p. 465).  This erroneous way of thinking is, Holmes advised his audience, "entirely natural" for lawyers, given their training in logic with its "processes" of analogy, discrimination, and deduction, but it erroneous nevertheless.  Moreover, "the logical method and form flatter that longing for certainty and for repose which is in every human mind" (p. 466).

"But," Holmes went on to say, without, it should be added, the slightest hesitation or expression of doubt, “certainty generally is an illusion, and repose is not the destiny of man.  Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an articulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding” (p. 466).

Now, this is getting interesting.  The man who would later utter, in another connection, that famous aphorism that "the life of the law has not been logic, it has been experience," has already told his audience in this lecture that law is a matter of prediction, of prophecies of what courts will do in fact.  And he has expressed great skepticism about the role of logic in guiding the decision-making of judges whose rulings, one way or the other, will constitute the law.

So, how are those decisions to be rationally guided?  What is "the law" from the perspective, not of the "bad man," but of the "good judge," who facing a disputed question of law will not be comforted by the assurance that "the law" is a prediction of how he will in fact resolve the case.  In fact, what he wishes to do is to resolve the case according to the law.  That, he supposes, is his job.  He wants to rule on the matter favorably to the litigant whose cause is supported by the superior legal argument.  But what constitutes legal argument?  What are the sources of law upon which legal reasoning operates?

Of course, one candidate for inclusion in the list of legal sources is history.  And, according to Holmes, "the rational study of law is still to a large extent the study of history" (p. 469).  Is this good or bad?  Well, "history must," Holmes says, "be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know" (p. 469).  But then comes the punch line:  "It is part of the rational study, because it is the first step toward an enlightened scepticism, that is, toward a deliberate reconsideration of the worth of those rules" (p. 469).

So, history is not a source in the sense that the legal rules uncovered, and whose meaning is clarified, by historical inquiry are authorities that guide the reasoning of the conscientious judge.  On the contrary, such study has its value in exposing such rules to "an enlightened scepticism" regarding their value.  But, then, by appeal to what standards are such judgments of value to be made?  And—most critically—are these standards internal to the law or external?  Does the judge discover the proper standards in the legal materials—the statutes, the cases, the learned treatises—or bring them to those materials?  If the latter, then what is the discipline from which he derives them?

These are questions that will be central to the theoretical reflections of jurists and legal scholars for a hundred years.  They will be answered one way by Jerome Frank and his fellow "legal realists" in the first half of the twentieth century, and precisely the opposite way by Ronald Dworkin and his followers in the second half.  Herbert Hart—the greatest of the English-speaking legal philosophers of the last century—

will refer to the realists' answer as the "nightmare" that law does not exist, and to Dworkin's answer, as the "noble dream," that law as such provides a "right answer"—a single uniquely correct resolution—

to every dispute which makes its way into the courtroom.

Holmes's own answer was vexingly ambiguous.  In "The Path of the Law," he said at one point that "I think [] the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage" (p. 467).  At another point he made this remarkable statement:

I look forward to a time when the part played by history in the explanation of [legal] dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them.  As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics (p. 474).

Three-quarters of a century later, Richard Posner, Frank Easterbrook, Richard Epstein, Guido Calebresi, and other theorists and practitioners of the "economic analysis of law" would take this last piece of advice quite literally.  Their books, law review articles, and—in the cases of Posner, Easterbrook, and Calebresi—judicial opinions would subject legal rules and social policies to cost-benefit tests and other forms of economic analysis to assess their instrumental rationality and, thus, in some cases, their legal validity.

What these scholars and jurists do fits pretty well with Holmes's desire for lawyers and judges to "consider the ends which the several rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price" (p. 476).  But, one must ask, would Holmes really approve their doing it?

Although Holmes was, in his politics, "a moderate, liberal reformer," (J.W. Harris, Legal Philosophies, London:  Butterworths, 1980, p. 94) he was resolutely determined, as a judge, not to "legislate from the bench."  Indeed, during a period of unprecedented "judicial activism," he became the symbol of opposition to the judicial usurpation of legislative authority under the guise of interpreting the constitution.  As an Associate Justice of the Supreme Court of the United States, he drew as sharp a line as any jurist of his time between "law" and "politics"—even when the politics in question was political economy.

In what is perhaps his most celebrated dissent, Holmes castigated the majority in the 1905 case of Lochner v. New York (1905) invalidating a state law setting maximum working hours for employees in bakeries on the ground that such a regulation violated the "freedom of contract" which was held to be implicit in the due process clause of the Fourteenth Amendment.

Holmes argued that this so-called "substantive due process" doctrine was an invention designed to authorize what was, in fact, the illegitimate judicial imposition of a theory of economic efficiency and the morality of economic relations on the people of the states and the nation.  His claim was not that there was anything defective in that theory; on the contrary, its "social darwinist" dimensions held considerable appeal to him.  Rather, it was that judges had no business substituting their judgments of efficiency and value for those of the people's elected representatives in Congress and the state legislatures.  They, he said, should be able to go to hell in their own way!

Now, it is not that any of this is flatly inconsistent with what Holmes said in "The Path of the Law."  Indeed, at one point in that lecture he seems to suggest that training in economics and a due weighing of considerations of social advantage will have the salutary effect of encouraging judicial restraint.  "I cannot but believe," he declared, "that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions" (p. 468).

But plainly Holmes, as a judge--and, above all, as a dissenting judge--is supposing that the law is something more than merely a prophecy of what the courts will in fact decide.  As a dissenter, he holds that the Courts have decided the case incorrectly.  Of course, he does not deny that their rulings—even where incorrect—have the binding force of law, at least until they are reversed by higher courts of appeal.  But he does suppose that the judges in the majority "got the law wrong."  So, in some significant sense, the courts should be guided by the law; the judges should be faithful to the law.  And this presupposes the reality of law, the pre-existence of law, as something more than "a prophecy of what courts will do in fact."

So we must press the question:  To what standards of legal correctness should the judge look in reasoning to the resolution of a case?  Are the standards internal to the legal materials and discoverable, by some method, in them?  Or are they external?  Do judges "find" the law?  Or do they, necessarily, "create" it?  Can lawyers predict, or "prophesy" what a good and conscientious judge will do by figuring out what he should do in light of the legal materials which should control his reasoning?  If that is all he means by "prediction" and "prophecy," then Holmes's debunking exercise is, for all its provocative langauage, far less skeptical than it appeared.

Drawing their inspiration from Holmes, however, were a group of legal scholars who were prepared, for awhile at least, to expose the idea of law to truly radical skepticism.  The legal realist movement, which reached the peak of its influence in the 1930s and 40s, advanced the debunking project well beyond the point at which Holmes had left things in "The Path of the Law."  Felix Cohen, Karl Llewellyn, Jerome Frank, and others pressed to an extreme the idea of jurisprudence as an essentially "predictive" enterprise.  "Law," according to Llewellyn, "was what officials do about disputes."  In accounting for their decisions, he insisted, it could only rarely be true to say that they are guided by rules.

The trouble is not—or not just—that judges and other officials are wilful, and thus willing to lay aside the clear command of legal rules in order to do as they please.  It is that legal rules are necessarily vague and susceptible of competing reasonable interpretations and applications.  Even the problem of selecting which rule to apply to a given set of facts can only rarely be solved by looking to a clear rule of selection.  The result is a measure of indeterminacy which makes nonsense of the idea of legal objectivity.

The key to understanding the phenomenon of law—

accounting for what judges and other officials do, or predicting what they will do, about disputes—is not the analysis of legal rules.  It must be something else.  True, judges and other official cite the rules in justifying their decisions.  But, if we are to be realistic about what is going on, according to Llewellyn, we must recognize that this is the mere legal rationalization of decisions reached on other grounds.

Frank's realism, was, if anything, still more extreme in its denial of legal objectivity.  Going beyond Llewellyn's "rule-skepticism," Frank declared himself to be a "fact-skeptic" as well.  Thus he denied law's objectivity even in the rare cases in which a clear rule was clearly applicable.  Since rules must be applied to facts in order to generate a legal outcome, everything depends on findings of fact in trial courts and other fact finding tribunals.  And facts are, in most cases, virtually as indeterminate as legal rules.

In statements which seem eerily, well ... realistic, in the aftermath of several high profile celebrity trials in our own day, Frank argued that our perceptions of facts are deeply influenced by conscious and subconscious beliefs, attitudes, and prejudices which vary among groups and individuals.  So the key to understanding law—understood in legal realist terms—is understanding people's beliefs, attitudes, and prejudices, and why they hold them.  Since law is a sort of epiphenomenon of human psychology, legal scholarship should be directed to scientific (e.g., psychological) and social scientific studies of human motivation.  To be realistic, it should abandon the idea that law pre-exists and is available to guide legal decisions.

The legal realists' insistence on the indeterminacy of law would, in our own time, be reasserted by advocates of "critical legal studies," though this time in the service of a "new left" political agenda and with nothing like the realists' faith in the objectivity and explanatory power of the natural and social sciences.

The realists themselves were, like Holmes, political progressives—moderate liberals—eager to bring instrumental rationality to bear to solve social problems.  Many were New Dealers.  A few became judges.  And those who did, were, like Holmes, far less radical in practice than their theoretical views would have led one to predict.

Although appeals to the alleged findings of social science became an increasingly common feature of judicial opinions as the twentieth century wore on, realists who became judges rarely cited their own subjective views or prejudices as ground of their decisions.  Rather, they cited legal rules as the ultimate reasons for their decisions; and claimed, at least, to lay aside their own preferences in fidelity to the law.  (Interestingly, Frank, in the aftermath of the revelation of Nazi atrocities in Europe, declared himself in the Preface to the sixth edition of his Law and the Modern Mind, to be a follower of St. Thomas Aquinas on the basic questions of law and morality.  Nothing in his earlier writings, he insisted, was ever meant to suggest otherwise.)

Of course, realism had its appeal precisely because it was, from a certain vantage point, realistic.  Trial lawyers take issues of venue and voir dire very seriously because they know—and knew long before the O.J. case—that who's on the jury can be critical to whether facts are found favorably to their clients or not.  And one of the the first questions lawyers at any level of litigation want to know the answer to is who the judge or judges are who will be making determinations of law at the trial or on appeal.  Often enough, different jurors or a different judge or judges means different results.  So far forth, the phenomenon of law includes elements of genuine subjectivity.

But, of course, the realists overstated their case.  They get stuck on the same question we put to Holmes a little while ago.  From the point of view of a conscientious judge, the law is not—for it cannot be—a prediction of his own behavior.  Often they, like Holmes, will be faced with what they themselves perceive to be a duty to follow rules whose application generates outcomes which run contrary to their personal preferences.  True, a willful judge can simply give effect to his prejudices under the guise of applying the law, at least until reversed by a higher court of appeal (if there is one).

But this is no modern discovery.  And it is no more a threat to the possibility of law's objectivity than is the fact that people sometimes behave immorally a threat to the objectivity of morals.  Just as a conscientious man strives to conform his behavior to what he judges to be the standards of moral rectitude, the conscientious judge strives to rule in conformity with the controlling rules of law.  And no account of the phenomenon of law which ignores the self-understanding of such a judge—no account which, that is to say, leaves his point of view out of account—can do justice to the facts.

This, I think, was clear to Herbert Hart.  He above all other English-speaking juridical thinkers in the wake of legal realism recognized that the shortcomings of legal skepticism and the radical denial of law's objectivity had mainly to do—not with the dangers of its project of debunking to the body politic by its capacity to undermine the public's faith in the rule of law—but rather with realism's inability realistically to account for the phenomenon of law as it functions in human societies.  Realist theories failed to fit the facts.  And they failed to fir the facts because they approached the phenomenon of law from a purely external viewpoint.  The problem, according to Hart, was not that legal realists were bad lawyers; it was that they were bad psychologists and social scientists, even as they looked to psychology and social science to explain the phenomenon of law.

Social phenomena—phenomena created or constituted, at least in part, by human judgment, choice, cooperation, etc.—can never adequately be understood, Hart argued, without adopting what he called the "internal point of view."  This is the point of view of those who do not "merely record and predict behavior conforming to rules," or understand legal requirements as mere "signs of possible punishment," but, rather, "use the rules as standards for the appraisal of their own and others' behaviour" (H.L.A. Hart, The Concept of Law, Oxford:  Clarendon Press, 1961, pp. 95-96).

On this score, Hart faulted not only the legal realists, but also the leading figures in his own intellectual tradition, the tradition of analytical jurisprudence inspired by Thomas Hobbes and developed by Jeremy Bentham and his disciple John Austin.  The problem with their jurisprudential theories, Hart observed, is that they too fail to fit the facts.  And they fail to fit the facts because they do not take into account the practical reasoning of people whose choices and actions create and constitute the phenomenon of law—people for whom legal rules function as reasons for decisions and actions.

Hart in no way denied the wide variability of legal rules.  Beyond some basic requirements of any legal system--what Hart called the "minimum content of natural law"—there could be, and, in fact, one finds in the world, a great deal of variation from legal system to legal system.  But in all societies which have achieved a legal order—that is, moved from a pre-legal order to a regime of law—law exhibits a certain objectivity and autonomy from other phenomena, including other normative systems.  And the law of any system is not truly understood by the theorist proposing to give an intellectually satisfying account of that system until he understands the practical point of the law from the perspective of actors within the system who do not perceive their own deliberations, choices, and actions to be "caused," but rather understand themselves to be making laws for reasons and acting on reasons provided by the laws.

In his masterwork, The Concept of Law, Hart invited his readers to treat his analysis as "an exercise in descriptive sociology."  But his was a sociology designed to make possible the understanding of legal systems from the inside.  So what he proposed, and what the tradition of analytical jurisprudence has now more or less fully accepted as Hart's most enduring contribution, is that even "the descriptive theorist (whose purposes are not practical) must proceed ... by adopting a practical point of view, [he must] assess importance or significance in similarities and differences within his subject matter by asking what would be considered important or significant in that field by those whose concerns, decisions, and activities create or constitute the subject-matter" (John Finnis, Natural Law and Natural Rights, Oxford:  Clarendon Press, 1980, p. 12).

If Hart rejected the externalism of Bentham and Austin--with its understanding of law (in Hobbesian fashion) as constituted by commands of a sovereign ("orders backed by threats") who is habitually obeyed by a populace but who in turn obeys no one—he retained their commitment to "legal positivism.”  He described this much misunderstood commitment as the acknowledgment of a "conceptual separation" of law and morals.  Although he was yet another moderate liberal in his politics, Hart did not mean by "positivism" the idea that law ought not to embody or enforce moral judgments.

True, in his famous debate with Patrick Devlin over the legal enforemcent of morals, Hart defended a modified version of J.S. Mill's "harm principle" as the appropriate norm for distingushing legitimate from illegitimate state enforcement of morality; but he fully recognized that this principle itself was proposed as a norm of political morality to be embodied in, and respected by, the law.  Moreover, he understood perfectly well that the content of legal rules reflected nothing so much as the moral judgments prevailing in any society regarding the subject matters regulated by law.  So Hart cheerfully acknowledged the many respects in which law and morality were connected, both normatively and descriptively.  In what respect, then, did he insist on their "conceptual separation?"

As I read The Concept of Law, as well as Hart's later writings, the "conceptual separation" thesis strikes me as rather modest.  It has to do above all, I think, with the legitimate aspiration of the descriptive sociologist to keep his descriptions, to the extent possible, free of coloration by his own normative moral views.  One can recognize a law, or even a whole legal system, as a law, or legal system, irrespective of whether one believes that that law, or legal system, is just; indeed, even a gravely unjust legal system can be, from a meaningful descriptive viewpoint, a legal system.  And what is true of the descriptive sociologist or legal theorist can also be true of the judge, who may conclude in a given case that the law—identified by authoritative criteria or standards of legality—provides a rule of decision in the case at hand which is, from the moral point of view, defective.  In repudiating what he took—wrongly, in my view—to be the defining proposition of the natural law theorist, Hart denied in an unnecessarily wholesale fashion the proposition lex iniusta non est lex.

Although his views in fundamental moral theory are frustratingly elusive, nothing in Hart's positivism commits him in any way to the moral skepticism, subjectivism, or relativism characteristic of the positivism of, say, Hans Kelsen or which one detects in the extrajudicial writings of Oliver Wendell Holmes.  In fact, the student of Hart's who has remained closest to his views in legal theory, Joseph Raz, combines Hartian legal positivism with a robust moral realism.  Hart and Raz have both insisted—rightly, in my view—on the necessity of some conceptual separation of law and morality for the sake of preserving the possibility of moral criticism of law.  As John Finnis has observed, the necessary separation "is effortlessly established [by Aquinas] in the Summa, [by] taking human positive law as a subject for consideration in its own right (and its own name), a topic readily identifiable and identified prior to any question about its relation to morality" (John Finnis, "The Truth in Legal Positivism," in Robert P. George, ed., The Autonomy of Law:  Essays on Legal Positivism, Oxford:  Clarendon Press, 1996).

Nevertheless, Hart's positivism generated one of the century's most fruitful jurisprudential debates when it was challenged by Lon L. Fuller in the late 1950s.  Fuller—whose careful explication and working out of the diverse elements of the Aristotelian ideal of the Rule of Law constitutes a genuine achievement of 20th century legal philosophy—

proposed an argument to show that law and morality are, as a matter of brute fact, more tightly connected than Hart's positivism would allow.  He sought to show that law necessarily embodies an "internal morality" that defies Hart's "conceptual separation" thesis.  He offered to argue the point, not as a normative matter about moral standards that positive law ought to meet, but, rather, on Hart's own terms, as a descriptive proposition about moral standards that law has to embody before even the purely descriptive theorist can recognize it as law.

In his book the Morality of Law, Fuller offered an apparently "value-free" definition of law that any legal positivist ought to be able to accept:  "Law is the subjecting of human behavior to the governance of norms."  Nothing in this definition demands that those who make and enforce the laws be wise, virtuous, benign, or concerned in any way for the common good.  Still, some things follow from it.  For example, people cannot conform their behavior to rules which have not been promulgated, or which lack at least some measure of clarity, or apply retrospectively.

So promulgation, clarity, and prospectivity are aspects of the Rule of Law.  Where they are absent, no legal system exists.  And there are other requirements, including some significant measure of reliable conformity of official action with stated rules.  Taken together, Fuller argued, the Rule of Law constitutes a moral achievement.  While this does not guarantee that a legal system will be perfectly just—in fact, all legal systems contain elements of injustice—it does mean that a certain minimum set of moral standards must be met before a legal system actually exists.  And, sure enough, grave injustice is rarely found in systems in which the rulers—whatever their personal vices and bad motives—govern by law.  It is in societies in which the Rule of Law is absent that the most serious injustices occur.

Of course, Hart wasn't buying this for a moment.  While he admired, and for the most part accepted, Fuller's brilliant explication of the Rule of Law, he saw no reason to refer to its content as an internal morality.  Moreover, he argued that there is no warrant for supposing that a system of law could not be gravely unjust, or that the Rule of Law provided any very substantial bulwark against grave injustice.  Indeed, Raz argued against Fuller that the Rule of Law was analogous to a sharp knife, valuable for good purposes, to be sure, but equally useful to rulers in the pursuit of evil objectives.

The Hart/Fuller debate (like the Hart/Devlin debate) was an illuminating one.  I count on it every year for at least two lively meetings of my seminar in philosophy of law at Princeton.  My own judgment is that Fuller scored a point or two in establishing a certain moral value of the Rule of Law, but that Hart rightly resisted Fuller's somewhat exaggerated moral claims on its behalf.  In any event, I do not think that Fuller undermined the central appeal of the "conceptual separation" thesis":  the methodological aspiration to avoid confusing "law as it is" with "law as it ought to be."

Nor do I think that Ronald Dworkin's celebrated critiques of Hart's positivism are telling.  Hart's theory has, as I have suggested, certain implications for the question Dworkin is most concerned about, namely, the question of judicial discretion in "hard cases;" but these implications are quite limited.  Hart is fundamentally interested in developing methodological tools to enable the descriptive legal theorist to give a refined and accurate account of law in a given society.

Thus, for example, he proposes the union of "primary" and "secondary" rules as "the key to the science of jurisprudence;" he distinguishes "duty-imposing" from "power-conferring" rules; and he develops the idea of a rule (or rules) of recognition to which actors in a legal system have resort as establishing criteria of legal validity.  Hart's jurisprudence is not "court-centered."  In this respect, it differs sharply from the jurisprudence of Dworkin and most other American legal philosophers, including, interestingly enough, Holmes and the legal realists.

For Hart, the question of how much law-creating (or "legislative") authority a judge has, if any, or where that authority obtains, is not to be resolved at the level of general jurisprudence.  Different legal systems differ—indeed, reasonably differ—on the question of how such law-making authority is to be allocated among judges and other actors in the overall political system.  To be sure, Hart observes that legal rules are inevitably "open textured," and, thus, in need of authoritative interpretation in their concrete application; and this entails a certain measure of judicial discretion and law-making authority as a matter of fact, even in those systems which exclude it in theory.

Does this mean that the wall between legal validity and the moral judgment of judges is porous, even in systems of avowed legislative supremacy (such as the British system)?  Yes, indeed.  Does it vindicate Dworkin's "right answer" thesis?  Not at all.  Hart's legal positivism is, in fact, completely compatible with the recognition that judges in some legal systems are invited or even bound under the positive law of the constitution to bring moral judgment to bear in deciding cases at law.  Hart's is not a theory designed to show judges how they can resolve cases without making moral judgments, though neither is it a theory offering to justify their doing so (as Dworkin's is).  The theory simply isn't addressed to such questions.

What I think Hart is to be faulted for is a certain failure to see and develop the fuller implications of his own refutation of Benthamite and Austinian positivism and of his adoption of the internal point of view.  Some of these implications are acknowledged, I think, by Raz in his later work, though he quite resolutely resisted them earlier on, as Hart did.  The central or focal case of a legal system, to borrow a principle of Aristotle's method in social study, is one in which legal rules and principles function as practical reasons for citizens as well as judges and other officials because of people's apprehension of their value.  Aquinas's famous practical definition of law as an ordinance of reason directed to the common good here has its significance in descriptive legal theory.  As Finnis remarks,

if we consider the reasons people have for establishing systems of positive law (with power to verride immemorial custom), and for maintaining them (against the pull of strong passions and individual self-interest), and for reforming and restoring them when they decay or collapse, we find that only the moral reasons on which many of those people often act suffice to explain why such people's undertaking takes the shape it does, giving legal systems the many features they have--features which a careful descriptive account such as H.L.A. Hart's identifies as characteristic of the central case of positive law and the focal meaning of "law," and which therefore have a place in an adequate concept (understanding and account) of positive law.

Yet Hart himself, in The Concept of Law and elsewhere declined to distinguish central from peripheral cases of the internal point of view itself.  Thus, he treated cases of obedience to law by virtue of "unreflecting inherited attidues" and even the "mere wish to do as others do" from morally motivated obedience of fidelity to law.  These "considerations and attitudes," like those which boil down to mere self-interest or the avoidance of punishment, are, as Finnis says, "diluted or watered-down instances of the practical viewpoint that brings law into being as a significantly differentiated type of social order and maintains it as such.  Indeed, they are parasitic upon that viewpoint" (Finnis, NLNR, p. 14).

Now, this is in no way to deny any valid sense to the positivist insistence on the "conceptual separation" of law and morality.  It is merely to highlight the ambiguity of the assertion of such a separation and the need to distinguish, even more clearly than Hart did, between the respects in which such a separation obtains and those in which it does not.

Still less is it to suggest that belief in natural law or other forms of moral realism entail the proposition that law and morality are connected in such a way as to confer upon judges as such a measure of plenary authority to enforce the requirements of natural law or to legally invalidate provisions of positive law they judge to be in conflict with these requirements.  The truth of the proposition lex iniusta non est lex is a moral truth, namely, that the moral obligation created by authoritative legal enactment—that is to say, by positive law—is conditional, rather than absolute.  The prima facie moral obligation to obey the law is defeasible.

Modern legal philosophy since Hart, including work by Hart’s leading students—especially Professor Finnis, Joseph Raz, and Neil MacCormick—and their students, especially Jeremy Waldron—has brought into focus the need to deploy the concept of “law” in an appropriately flexible way to take into account the differences between the demands of (i) intrasystemic legal analysis or argumentation (e.g., in the context of professional legal advocacy or judging); (ii) what, following Hart, we might call “descriptive” social theory (e.g., “sociology of law”); and (iii) fully critical (i.e., “normative,” “moral,” conscience-informing) discourse.

That leading theorists of natural law have always understood that laws can be, and indeed often are, unjust is evident both from their many explicit references to unjust laws and from the very considerable attention devoted in the tradition to the problem of legal injustice.  Aquinas, for example, mane central to his reflections the question whether, and, if so, how and to what extent, did unjust laws bind in conscience those subject to them to obey.[1]

It is clear enough that Aquinas believed that human positive law creates a moral duty of obedience even where the conduct it commands (or prohibits) would, in the absence of the law, i.e., morally, as a matter of natural law, be optional.  This critical-moral belief in the power of positive law to create (or, where moral obligation already exists, reinforce) moral obligation naturally suggests the question whether this power (and the duties that are imposed by its exercise on those subject to it) is absolute or defeasible.  If defeasible, under what conditions is it defeated?

To answer this question, it is necessary to press the critical-moral analysis.  What is the source of the power in the first place?  Plainly it is the capacity of law to serve the cause of justice and the common good by, for example, coordinating behavior to make possible the fuller and/or fairer realization of human goods by the community as a whole.  But, then, from the critical-moral viewpoint, laws that, due to their injustice, damage, rather than serve, the common good, lack the central justifying quality of  law.  Their law-creating power (and the duties they purport to impose) is, thus, weakened or defeated.  Unjust laws are, Aquinas says, “not so much laws as acts of violence.”[2]

As violations of justice and the common good, they lack the moral force of law; they bind in conscience, if at all, only to the extent that one is under an obligation not to bring about bad side effects that would, in the particular circumstances, likely result from one’s defiance of the law (e.g., causing “demoralization or disorder,”[3] as by undermining respect for law in a basically just legal system, or unfairly shifting the burdens of a certain unjust law onto the shoulders of innocent fellow citizens[4]).  That is to say, unjust laws bind in conscience, if at all, not per se, but only per accidens.  They are laws, not “simpliciter,” or, as we might say, in the “focal” or “paradigmatic” sense, but only in a derivative or secondary sense (“secundum quid”).

Nothing in Aquinas’s legal theory or in the thought of modern natural law theorists, such as myself, suggests that the injustice of a law renders it something other than a law (or “legally binding”) for purposes of intrasystemic juristic analysis and argumentation.  It is true that Aquinas counseled judges, where possible, to interpret and apply laws in such a way as to avoid unjust results where, as best they can tell, the law makers did not foresee circumstances in which a strict application of the rule they laid down would result in injustice, and where they would, had they foreseen such circumstances, have crafted the rule differently.[5] But even there he does not appeal to the proposition that the injustice likely to result from an application of the rule strictly according to its terms nullifies those terms from the legal point of view.

Nor does Aquinas say or imply anything that would suggest treating Augustine’s comment that “an unjust law seems not to be a law” as relevant to social-theoretical (or historical) investigations of what is (or was) treated as law and legally binding in the legal system of any given culture (however admirable or otherwise from the critical-moral viewpoint).  So, for example, though Herbert Hart was indeed among those who misunderstood Aquinas and his stream of the natural law tradition on precisely this point, no follower of Aquinas should suppose that Hart’s “descriptive sociology” of law errs by treating as laws (and legal systems) various social norms (and social norm-generating institutions) that fulfill the criteria or conditions for legality or legal validity of Hart’s concept of law, despite the fact that his social-theoretical enterprise (reasonably!) prescinds to a considerable extent (indeed, it seeks to prescind as far as possible) from critical moral evaluation of laws and legal systems.

The criticism Hart’s work invites from a natural law perspective has nothing to do with his willingness to treat unjust laws as laws; it has rather to do with his unwillingness to follow through on the logic of his own method and his insight into the necessity of adopting or reproducing and internal point of view—a method which, if followed through, will identify the focal or paradigmatic case of law as just law—law that serves the common good—and the focal or paradigmatic case of the internal (or “legal”) point of view as the viewpoint of someone who understands law and the legal system as valuable (and legal rules as, ordinarily, binding in conscience) because (or insofar as) they are just—and, qua just, serve the common good.[6]

What about law's objectivity?  Does law exist prior to legal decision?  Can judicial reasoning be guided by standards internal to the legal materials?  At the end of our century, we can, I think, affirm a position more subtle than Holmes asserted at the end of his.  Yes, the standards to guide judicial reasoning can be internal to the law of a system which seeks to make them so, though never perfectly.  Positive law is a human creation—a cultural artifact—though it is largely created for moral purposes—for the sake of justice and the common good.  That is to say, law exists in what Aristotelians would call the order of technique, but it is created in that order precisely for the sake of purposes which obtain in the moral order.

So, for moral reasons, we human beings create normative systems of social enforceable rules that enjoy, to a significant extent, a kind of autonomy from morality as such.  We deliberately render these rules susceptible to technical application and analysis for purposes of, for example, fairly and finally resolving disputes among citizens, or between citizens and governments, or between governments at different levels.  And to facilitate this application and analysis, we create a legal profession, from which we also draw our judges, which is composed of people socialized and trained in programs of study which teach not, or not just, moral philosophy, but the specific tools and techniques of research, interpretation, reasoning, and argument relevant to the legal analysis.

Now, to stress law's objectivity and relative autonomy from morality is by no means to deny the Thomistic proposition that just positive law is derived from the natural law.  For Thomas himself did not suppose that positive law was anything other than a cultural artifact, a human creation, albeit a creation of great moral worth brought into being largely for moral purposes.

Nor did he suppose that a single form or regime of law was uniquely correct for all times and places.  His stress on determinations by which the human lawmaker translates the requirements of the natural law into positive law for the common good of his community—enjoying, to a considerable extent, the creative freedom Aquinas analogized to that of the architect—reveals his awareness of the legitimate potentially very wide variability of human laws.

Whomever Holmes may have had in mind in criticizing those "text writers" who saw law as a set of deductions from a few axioms of reason, the charge has no applicability to Aquinas.  In this, as in so many other respects, the Angelic Doctor was a man of the twentieth century, and—if I may engage in a bit of prediction and prophecy myself—of the twenty-first, and beyond.

Dr. Robert P. George is McCormick Professor of Jurisprudence at Princeton University. An earlier version of this paper was published in the Notre Dame Law Review.

[1] Summa Theologiae I-II, q. 96, a. 4.

[2] Id.

[3] Id. Note, however, that, according to Aquinas, one may never obey a law requiring one to do something unjust or otherwise morally wrong.  And sometimes disobedience is required to avoid causing (or contributing to) “demoralization or disorder.”  (On issues relevant to the translation of Aquinas’s phrase “scandalum vel turbatio,” see Finnis, Aquinas, pp. 223 at n. 23, 273 at n. 112, and 274 at n. d.)

[4] See Summa Theologiae II-II, q. 60, a. 5.

[5] Id.

[6] This criticism of Hart (and Raz) is carefully developed by Finnis:  see Natural Law and Natural Rights, pp. 12-18.  On Hart’s misinterpretation of Aquinas on these matters, see id., ch. XII.