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THE DEFENCE of NATURAL LAW Also by Charles Covell THE DEFENCE OF NATURAL LAW Also by Charles Covell THE REDEFINIDON OF CONSERVATISM: Politics and Doctrine The Defence of Natural La~ A Study of the Ideas of Law and Justice in the Writings of Lon L. Fuller, Michael Oakeshot, F. A. Hayek, Ronald Dworkin and John Finnis Charles Covell M St. Martin's Press ©Charles Covell1992 Softcover reprint of the hardcover 1st edition 1992 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. First published in Great Britain 1992 by THE MACMILLAN PRESS LTD Houndmills, Basingstoke, Hampshire RG21 2XS and London Companies and representatives throughout the world A catalogue record for this book is available from the British Library. ISBN 978-1-349-22361-9 ISBN 978-1-349-22359-6 (eBook) DOI 10.1007/978-1-349-22359-6 Reprinted 1994 First published in the United States of America 1992 by Scholarly and Reference Division, ST. MARTIN'S PRESS, INC., 175 Fifth Avenue, New York, N.Y. 10010 ISBN 978-0-312-08394-6 Library of Congress Cataloging-in-Publication Data Covell, Charles, 1955- The defence of natural law : a study of the ideas of law and justice in the writings of Lon L. Fuller, Michael Oakeshot, F. A. Hayek, Ronald Dworkin, and John Finnis I Charles Covell. p. em. "First published in Great Britain, 1992, by The Macmillan Press Ltd., Houndmills, Basingstoke, Hampshire ... and London"-T.p. verso Includes bibliographical references and index. ISBN 978-0-312-08394-6 1. Natural law. 2. Law-Philosophy. 3. Justice. 4. Political science-Philosophy. I. Title: Defense of natural law. K415.C66 1992 340'.112-dc20 92-8325 CIP For my students Contents Acknawledgements ix Preface x 1 Introduction: Modem Legal Philosophy 1 2 Lon L Fuller and the Defence of Natural Law 30 i. The Law in Quest of Itself 31 ii. Eunomics and the Morality of Law 43 iii. The Common Law Tradition and the Political Morality of Liberalism 57 3 Michael Oakeshott and F. A. Hayek: Natural Law and the Philosophy of Liberal Conservatism 71 i. Oakeshott, Hobbes and Civil Association 72 ii. The Liberal Theory of Justice: Oakeshott and Rawls 91 iii. The Liberal Theory of Justice: Oakeshott and Nozick 114 iv. Oakeshott, Hart and Legal Positivism 121 v. Hayek, Oakeshott and Liberalism 126 4 Ronald Dworkin: Legal Philosophy and the Liberal Theory of Justice 145 i. The Critique of Legal Positivism: Hard Cases, Principles and Adjudication 146 ii. The Liberal Theory of Justice: Individual Rights and the Idea of Law as a Community of Principle 163 iii. Dworkin and Hayek 171 iv. Dworkin and Oakeshott 175 v. Integrity: Liberalism, Legitimacy and Natural Law 180 vii viii Contents 5 John Finnis: Thomism and the Philosophy of Natural Law 196 i. Natural Law and Natural Rights 198 ii. Nuclear Deterrence and the Legitimacy of the Modem Political Order 215 6 Conclusion 226 Notes and References 242 Bibliography 255 Index 261 Acknowledgements I wrote the early drafts of this book in England during the second half of the 1980s. For most of this period I lived in Cambridge, where I derived great benefit from the advice and intellectual stimulus provided by Dr Paul Binski, Mr Maurice Cowling, Dr Ian Harris, Dr Alexander Lindsay, Mr Alexander Perkins and Mr J. H. Prynne. I completed the final version of the book during the early months of my tenure of a Foreign Professorship at the College of International Relations of the University of Tsukuba in Japan. I am pleased to have here the opportunity to record my formal thanks to Professor Akio Hosono, the present Dean of the College, and to his predecessor Professor Hideo Sato for the many privileges and courtesies extended to me as a member of the College. Tsukuba, Japan CHARLFS COVELL July 1991 ix Preface In his classic monograph Natural Law (1951),1 A. P. d'Entreves traced the emergence of the great natural law tradition in legal and political philosophy from its origins in the thought of Plato, Aristotle and the stoic philosophers, through the period of its adaptation by Roman jurists as a philosophical foundation for Roman law, up to its culmination in the philosophical system of St Thomas Aquinas. According to d'Entreves, the governing idea of the natural law tradition consisted in the view that the study of law was to be understood as forming a branch of ethics - with the consequence that he took the essential function of natural law philosophy to be that of mediating between 'the moral sphere and the sphere of law proper'.2 For d'Entreves, then, it was a distinguishing characteristic of the work of philosophers belonging to the natural law tradition that they sought to emphasize both the moral foundations of law and the formative role played by the law in the organization of the moral experience of the individual in society. Lon L. Fuller (1902-78), Michael Oakeshott (1901-90), F. A. Hayek (1899-1992), Ronald Dworkin (b. 1931) and John Finnis (b. 1940) were all committed to the view that the rule of law in modem society was to be understood in accordance with the critical standpoint provided by moral philosophy. However, with the exception of Finnis, none of the theorists looked back to the great Aristotelian-Thomist tradition in natural law philosophy. Indeed, Fuller, Oakeshott, Hayek and Dworkin adhered closely to the intellectual viewpoints that distinguished the modem tradition in moral, legal and political philosophy which d'Entreves considered to have marked a fundamental break with the classical and medieval philosophy of natural law. For d'Entreves, the modem tradition in moral, legal and political philosophy began during the sixteenth and seventeenth centuries, and was reflected in, and carried forward by, the theological ideas that emerged during the X Preface xi Reformation in Europe; the growing secularization of the concepts constitutive of natural law philosophy; the advent of the ideology of political absolutism, as manifested in the tendency of theorists like Bodin and Hobbes to regard the sovereign power of the state as the essential precondition of legal experience, and to regard the ideas of command and obedience as defining the essential nature of law; the emergence in the seventeenth century, and the develop­ ment in the centuries following, of a political philosophy based in the idea of the natural rights of the individual; and the formulation by Hegel in the early nineteenth century of the doctrine of the ethical state, according to which the legitimacy of the modem state was understood to be grounded in the historical experience of human society, rather than in its conformity to universal principles of natural law. In the first chapter of this volume, I describe the outlines of the modem tradition in legal philosophy. In doing so, I concentrate on the nineteenth- and twentieth-century schools of legal positivism, historical jurisprudence, American legal realism and sociological jurisprudence. At the same time, I attempt to describe the outlines of the modem tradition in political philosophy which began with Hobbes, while looking back to the pre-modem tradition in political philosophy of Plato, Aristotle and Aquinas. My main aims in the first chapter are to locate Fuller, Oakeshott, Hayek, Dworkin and Finnis in the context of the history of legal and political philosophy, and to explain the philosophical ideas which influenced the development of their arguments about the nature of law and civil government. A related aim is to make clear that, with the exception of Finnis, these theorists are to be counted as defenders of natural law more by virtue of their opposition to the prevailing positivism of modem legal philosophy than because of any alignment on their part with the tradition of Plato, Aristotle and Aquinas. In Chapter 2, I examine the work of Fuller, a jurist generally acknowledged to be one of the leading twentieth-century defenders of the modem secular natural law tradition in legal philosophy. Although drawing on a wide range of Fuller's published writings, I structure the chapter around detailed critical analyses of his three most important works: The Law in Quest of Itself(1940); The Morality of Law (1964) and Anatomy of the Law (1968). My objectives in so organizing the chapter are three in number. First, I attempt to use Fuller's arguments for the purposive quality of law, as set out in The Law in Quest of Itself, in order to identify the principal grounds xii Preface of conflict between the metaphysical assumptions governing the view of law adopted by jurists standing in the mainstream tradition of legal positivism and those governing the view of law taken up by theorists like Fuller, Oakeshott, Hayek, Dworkin and Finnis. Second, I try to show how Fuller's arguments for an essentially procedural theory of natural law in The Morality of lAw make clear the underlying adherence of modem legal philosophers in the natural law tradition to the moral and political values central to the philosophy of modem liberalism. Third, I try to show how Fuller's arguments for the purposive quality of law, and his arguments for the procedural morality which he took to secure the justice of law, led him in Anatomy of the Law to focus on the logic governing the methods of adjudication followed by the courts in the common law tradition.
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