The Revival of Natural Law: Fuller and Finnis

Abstract

Although Hume’s argument about the impossibility of deriving an ought from an is (see Chapter 3) is ‘for many jurists … a knock-down argument against all forms of natural law thinking’, in reality ‘it merely deprives natural lawyers of that most revered of philosophic weapons, the deductive syllogism’. (Harris, Legal Philosophies, 2nd edn, 1997, pp. 12, 13.) The possibility remains, therefore, of seeking alternative forms of rational support for the idea of natural law, and as the scale of the Nazi atrocities committed before and during the Second World War became known, the desire to do so revived. In the event, two major, and quite distinct, theoretical expositions emerged. The earlier was contained in a set of lectures given by Lon L. Fuller, an American professor of law, in 1963 before being revised and published the following year as The Morality of Law. (The edition currently available was published in 1969, and contains a reply to some of the criticisms which followed the original version.) The later is John Finnis’s Natural Law and Natural Rights, which was published in 1980. We will consider each in turn.