MODERN NATURAL LAW THEORY
Understanding Lon Fuller
There are two categories of
natural law theory: (1)
traditional natural law theory and
(2) modern natural law theory. It
is important to note that these
two categories are NOT
contradictory. Concepts are just
different so that it is rare to find
traditional notions in the modern
natural law theory.
Modern natural law theory
focuses more narrowly on the
proper understanding of law as a
social institution or a social
practice. It arose as a response to
legal positivism and the way legal
positivism advanced the
conceptual separation of law and
morality (morality as not
necessary to law).
Lon Fuller, a modern natural law
theorist, argued against a sharp
separation of law and morality as
proposed by legal positivists. He
believes that moral evaluation of
some sort is required in
determining the legal validity of
individual laws.
 Legal positivism’s
distorted view of law as
a “one-way projection of
authority” (the
sovereign commands
and the citizens obey)
missed the need for
cooperation between
officials and citizens for
a legal system to work.
 Law is a particular
means to an end, a
particular way of
guiding and
coordinating human
behavior. Rules must
meet certain criteria
relating to that means if
they are to warrant the
title “law” and effectively
guide behavior.
 Fuller, therefore, offered
an analysis based on the
“internal morality” of
law – a test that must be
by Brian Bix
passed before something
could be properly called
“law”. Such test is one of
function and procedure
rather than one
primarily of moral and
substantive content.
 Eight requirements of
law (principles of
legality)
1. General
2. Promulgated
3. Prospective
4. Understandable
5. Not Contradictory
6. Not requiring
conduct beyond the
abilities of those
affected
7. Relatively constant
through time
8. Congruence
between the laws as
announced and as
applied.
Criticisms and Answers
 Critics say that Fuller’s
test is merely
procedural. However,
such criticisms
misunderstand the
extent to which our
perceptions of justice
incorporate procedural
elements. In other
words, procedural ideals
are a part of justice.
 Critics argued that a
regime could follow
procedural
requirements and still
enact wicked laws.
However, Fuller believes
that when proper
procedures are followed
some officials might be
less willing to act in evil
and corrupt ways.
 Critics claim that
governments which are
evil will be likely to
ignore the procedural
requirements. But to
Fuller, since procedural
requirements can be
understood as guidelines
for making the legal
system more effective in
guiding citizen behavior,
wicked regimes would
also have reasons to
follow them.
Caveat by Brian Bix
 While following the
principles of legality is
itself a moral good and
while it may indicate a
government committed
to morally good actions,
it is probably claiming
too much for those
principles to say that
following them would
guarantee a
substantively just system.
 It is dangerous to focus
on the validity of law
based solely on
procedural
requirements as it often
smothers real moral,
sociological or
conceptual arguments.
 It may often be
preferable to bypass
questions of validity in
order to face directly
whatever further
substantive issues may
be present.
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I. Pure Theory of Law is a theory
of positive law. It is a version of
legal positivism because it
considers as “law” only positive
law and refuses to recognize as
law any other normative social
order – i.e. “natural law”.
A. Law is normative.
 According to legal
positivism, law by its very
nature is a definite type of
norm. As a “norm”, the law
is the specific meaning of
an act of will directed at a
definite human behavior –
that men ought to behave
in a certain way.
 Norms (“ought”) vs.
Assertions (“is”)  norms
are not describing, but
prescribing; assertions
describe a certain object.
 Law is a coercive order.
It tries to bring about a
certain human behavior by
rules attaching to the
contrary behavior coercive
acts as sanctions. As a
condition of a sanction, the
behavior must be “illegal”,
or a delict.
B. There are two conditions
for a legal norm to become
positive law:
1. It must be “posited” or
created by man for man
(as opposed to being
established by a divine
being or by nature)
2. It must be to a certain
extent effective, which
means that it is obeyed
and if not obeyed,
sanctions are imposed.
C. Sanction is not merely
the actual effect of the
delict as its cause, but the
LEGAL POSITIVISM
On the Pure Theory of Law
by Hans Kelsen
sanction is imputed to the
delict.
 Since legal norms make
use of ought-statements,
they indicate that under
certain conditions, certain
consequences—the
sanctions—ought to take
place. This imputation is
constituted by the legal
norm as the meaning of an
act of will.
II. Pure Theory of Law
separates law from other
normative orders, especially
from morals.
 The validity of a legal norm
is independent of its
relation to a moral norm,
and especially of its
relation to the moral norm
of justice.
 However, this does not
mean that the Pure Theory
of Law rejects the moral
postulate – that the Law
should be just. Instead, it
only refuses to recognize
an absolute justice
supposed to exist according
to a religious belief in the
justice of God.
III. Pure Theory of Law shows
that an act performed by a
human being is interpreted as
an act of State  provided that
the acts performed by him are
determined in a specific way by
the national legal order (or a set
of legal norms).
 In other words, the State as
an acting person is nothing
else but the personification
of the national legal order.
 Under the traditional
natural law theory, the
State and its law (national
legal order) are two
different objects of legal
cognition.
IV. A legal norm becomes
objectively valid if it is
authorized by the Constitution.
 It is a fallacy to argue that
a legal norm is valid
because it is created by an
act of will or because it is
effective; these facts are
mere conditions for a legal
norm to become positive
law, but not the reason for
the validity of a legal norm.
 In order for a legal norm to
be objectively valid, it must
be authorized not merely
by a “positive” legal norm,
but by a norm
presupposed in our
juristic thinking  basic
norm – which says that we
ought to obey the
Constitution and that legal
norms must conform to the
Constitution.
 Hence, a legal order is not
merely an aggregate of
legal norms of the same
level, but a hierarchy of
norms on the top of which
stands the basic norm.
V. Summary: Law is a…
1. coercive order (note:
think of sanctions &
delicts)
2. established by acts of
human beings and to a
certain extent effective
(note: remember the 2
conditions of positive
law)
3. which may be
interpreted as a system
of objectively valid
legal norms
4. by virtue of its
conformity to the basic
norm (note: we ought to
obey the Constitution)

5. without regard to the

question as to whether
this coercive force is just
or unjust (note:
separation of law from
morals)

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