Trial by Slogan: Natural Law and Lex Iniusta Non Est Lex

Author(s): J. S. Russell
Source: Law and Philosophy, Vol. 19, No. 4 (Jul., 2000), pp. 433-449
Published by: Springer
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 J.S. RUSSELL

TRIALBY SLOGAN:NATURALLAW AND

LEX INIUSTANON EST LEX

(Accepted 16 October1999)

ABSTRACT. NormanKretzmann'srecent analysisof the naturallaw slogan "lex

iniustanon est lex" (an unjustlaw is not a law) demonstratesthe coherenceof the
slogan andmakesa case for its practicalvalue, butI shall arguethatit also ends up
showing thatthe slogan fails to markany interestingconceptualor practicaldivi-
sion between naturallaw andlegal positivistviews aboutthe natureof law. I argue
thatthis is a happyresult.The non-est-lex slogan has been used to exaggeratethe
extent of disagreementaboutthe natureof law and has divertedcritics of natural
law theoryfrom recognizingthatthe main disagreementbetween naturallawyers
and legal positivists centres on theories of practicalreason and how they affect
our understandingof the relationshipbetween law and morality.This extends the
debate about the natureof law somewhat beyond the traditionalboundariesof
philosophyof law, but these boundariesare due in partto the diversioncreatedby
debate over the non-est-lex slogan. Recognizing that the non-est-lex slogan fails
on its own to markany interestingpracticalor conceptualdivisionbetweennatural
law theoriesand legal positivism should thereforefocus and encouragedebateon
mattersof genuine substancebetweenthese outlooks.The disagreement,however,
may turnout to be primarilymetaphysicaland explanatoryand not normativein
nature.

Controversybetween legal positivist and naturallaw theories over

the nature of law has often been diverted into debates about the
status and practical implications of the natural law slogan "lex
iniusta non est lex" (an unjust law is not a law). Legal positivists
have argued that the paradoxicalnature of the slogan reflects the
untenabilityof naturallaw theories.Naturallawyershave responded
that legal positivists have failed to understandthe slogan properly
and have attributedto them absurd views that they do not hold.
A recent article by Norman Kretzmannhas laid this issue to rest.
Kretzmann'ssemanticanalysis of the non-est-lex slogan shows that

i Law and Philosophy 19: 433-449,2000.

9 ? 2000 KluwerAcademicPublishers. Printed in the Netherlands.

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434 J.S. RUSSELL

it carries no paradoxicalor otherwise unacceptableimplications.1

My aim in this paperis to show that,althoughKretzmann'sanalysis
makes clear sense of the non-est-lex slogan, it does so in a way that
renders it unable to mark an interestingdistinctionbetween legal
positivism and naturallaw theories. Part of Kretzmann'saim was
to show that misunderstandingof the slogan has diverted discus-
sions of naturallaw theoriesin ways thatoverlooktheirplausibility
and practical usefulness. I want to go furtherand argue that the
slogan shoulddropfromthe picturecompletelyin discussionsof the
relativemeritsof naturallaw andlegal positivistviews. Once we see
that the slogan fails on its own to markany interestingconceptual
or practicaldistinctionbetween naturallaw and legal positivism, it
is easier to see what the main issues are between these outlooks. I
arguethatthe main disputebetween naturallawyers and legal posi-
tivists centreson theoriesof practicalreasonandhow they affect our
understandingof the relationshipbetween law and morality.This
dispute is often implicit in disagreementsbetween naturallawyers
and legal positivists, but it is rarely addresseddirectlyby critics of
naturallaw theories. Undoubtedlythis is because it is an issue that
extends beyond the traditionalboundariesof philosophyof law, but
those boundariesare due in partto the diversionthathas been set up
by debateover the non-est-lex slogan.

We need to begin by examiningthe confusion that has surrounded

the non-est-lexslogan andhow Kretzmann'sanalysishelps to dispel
that confusion. The main objections are expressed in the writings
of both classical and modem legal positivists, including Bentham,
Austin, and Hart. Perhaps the most well-known objections are
expressedby Austin in the famous note at the end of LectureV of
1 Norman Kretzmann,"LEX INIUSTA NON EST LEX: Laws on Trial in
Aquinas'sCourtof Conscience,"AmericanJournalof Jurisprudence(1988): 99-
121. Kretzmann'spiece is now findingits way into philosophyof law anthologies
and textbooks. See Joel Feinbergand Hyman Gross, editors, The Philosophy of
Law, 5th edition, Belmont: Wadsworth,1995, and John Finnis, editor, Natural
Law, New YorkUniversityPress, 1991.

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 TRIALBY SLOGAN 435
The Province of JurisprudenceDetermined.2In that note, Austin
states the legal positivist creed that "the existence of law is one
thing; its merit or demerit is another"and opposes this to the
naturallaw idea that moralityis partof any genuine law, standardly
expressedin the slogan, an unjustlaw is not a law.Austin assertsthat
to say that an unjustlaw is not a law is simply to state a contradic-
tion, or "totalk starknonsense,"for an unjustlaw is obviously a law
- it is simply an unjustone. Let's call this "the conceptual objec-
tion." Austin also claims that the slogan's "abuseof language"is
"mischievous,"for it threatensanarchyby implyingthatunjustlaws
are void, imposing no obligations whatsoever.It, therefore,invites
citizens to disobeytoo casuallylaws thatappearto themto be unjust.
Let's call this "theanarchyobjection."Benthammakesthe same two
points and adds a third,that a contrarytendencyto mischief is also
evident in the slogan. For if there can be no unjust laws, then any
law that is on the books must be just; and so the slogan encourages
complacency and stifles dissent about the law.3 Let's call this "the
conservativeobjection."In his seminal essay, "Positivismand the
Separationof Law and Morals,"Hart cites Austin and Bentham
approvinglyon each of these points and concludes that, in sum,
one shouldbe a legal positivist in orderto speakplainly and clearly
aboutlaws and aboutmoralityand, thereby,to avoid the conceptual
andpracticaldangersassociatedwith naturallaw theory.In a similar
vein, Hartlater addedthat a concept of law that distinguisheslegal
invalidityfrom immoralityis to be preferredbecause it "enablesus
to see the complexityand varietyof these separateissues; whereasa
narrowconcept of law which denies legal validityto iniquitousrules
may blind us to them."4

2 John
Austin, The Province of JurisprudenceDetermined,edited by H.L.A.
Hart, London: Wiedenfield and Nicolson, 1954 (originally published, 1832),
pp. 184-191. For simplicity's sake, I shall overlook the theistic assumptionsof
many of the prominentpositivists (including Austin) and naturallawyers and
express their discussion of the relationshipbetween law and morality in fully
secularterms.
3 As cited in H.L.A. Hart,"Positivismand the
Separationof Law andMorals,"
and
Essays in Jurisprudence Philosophy, Oxford UniversityPress, 1983, pp. 52-
53.
4 H.L.A. Hart,
op. cit., pp. 52-55. See also The Concept of Law, Oxford
UniversityPress, 1961, pp. 206-207.

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436 J.S. RUSSELL

The virtueof Kretzmann'sanalysisis thatit shows thata straight-

forward interpretationof the non-est-lex slogan exists that clears
away the air of paradoxand confusion that has surroundedit. The
argument is an insightful piece of philosophy of language, but
we shall see that it ultimately overstates the legitimate semantic
point it makes. As a result, it ends up supportingan analysis of
the non-est-lex slogan that fails to mark any interesting concep-
tual or practical distinction between naturallaw theory and legal
positivism. Recognizing this is important,since it clears away a
long-standingimpedimentto focussing on more substantialareas
of disagreement.

II

Kretzmannargues that an analysis of law as a distinctive type

of conventional kind demonstratesthe conceptual coherence and
practicalusefulness of non-est-lex-typejudgments.5He claims that
manycommonconventionalkindsthatareintendedto serve or fulfil
humangoals or functions have both evaluative and non-evaluative
inclusion conditions. For example, laws may satisfy certain non-
evaluativeinclusion conditionsfor theirkind, and thereforebe laws
in a merely technical sense, but lack certain evaluativeconditions
for them to be "true,genuine, or paradigmatic"6examples of their
kind. Wherethey satisfy the non-evaluativeinclusionconditionsbut
lack the evaluativeinclusion conditions they do not representtrue
tokens of their kind, and we can thus say things to the effect that
"a bad/unjustx is evidently not an x" or "That'sno x!" According
to Kretzmann,the rhetoricalpoint and force of the naturallawyers'
use of such "dismissivejudgments"is to emphasize that a certain
kind is presentonly in a technical and equivocal sense since it fails
to meet certainfunctionalevaluativeconditionsthatare essential to
its being a true, genuine, authentic,or paradigmaticexample of its
kind.7Thus, an unjustlaw may be a law in a merely technicalsense,
in virtueof meeting certainnon-evaluativeinclusion conditionsthat
5 Kretzmann,
op. cit., pp. 102-104.
6 Kretzmann, cit., 103.
op. p.
7 Here is Kretzmann'slist of
Aquinas's inclusion conditions for something
being a law (op. cit., pp. 111-113):

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 TRIALBY SLOGAN 437
are requiredfor its promulgationas a law, but it may still fail to
be a genuine instance of a law if it fails to meet certain evaluative
inclusion conditionsthatare requiredof any genuine law.
Legal commentators,especially criticsof naturallaw theory,have
often struggled to find ways to express charitably and aptly the
idea behind the non-est-lex slogan. In what sense, could an unjust
law (admittedlya law, then?) not be a law? Although Kretzmann's
analysis of dismissive judgments needs to be qualified in some
respects, it nevertheless makes convincing sense of this seem-
ingly paradoxical idea. This can be illustrated by showing how
Kretzmann'sanalysis improveson a familiarattemptto explain the
non-est-lex slogan to studentsof philosophyof law.
Some commentatorshave attemptedto explain the non-est-lex
slogan by asserting that laws failing to meet certain moral stan-
dards are "like counterfeitmoney,"appearingon the surface to be
valid law, but on closer inspection are not valid law at all, like a
counterfeit dollar bill.8 But Kretzmann'sanalysis shows that the
properparallelwith an unjustlaw is not with somethingthat stands
in for the real thing, like a fake or counterfeitdollar bill which is
not a dollar in any essential non-evaluativeaspect, and so has no
claim even to be a "technicallycertifiable"dollarbill.9 The point is
(A) A directiveof reason.
(B) Aimed at the commongood.
(C) Promulgatedby the government.
(D) Pertainingto a complete community.
(E) Leadingpeople to or restrainingthem from certainactions.
(F) Having coercive power.
(G) Intendedto be obeyed.

(A) and (B) = essentialevaluativeinclusionconditions.(C) to (G) = essentialnon-

evaluative(formal)inclusion conditionswhich Kretzmannsays "mustbe met for
anything that is to count as a law at all ... [Therefore](A) and (B) are at issue
only in case (C)-(G) have been met."
8 AndrewAltman,ArguingAboutLaw: An Introductionto Legal Philosophy,
Belmont: WadsworthPublishing Company, 1996, p. 34. See also David Lyons,
Ethics and the Rule of Law, CambridgeUniversityPress, 1983, pp. 62-63.
9 This is not quite what Kretzmannsays. He says, for example,that a counter-
feit dollar is not a dollar "in any respect" (op. cit., p. 104, original emphasis).
This is a bit too strong,however.A counterfeitdollarmay be a dollarin respectof
appearance,materials,and even function.(Supposefor examplethatan employee
at the mint stays behind to run off a few extra sheets of $100 dollar bills for

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438 J.S.RUSSELL

that a token of a kind that combines evaluativeand non-evaluative

inclusion conditionsmay satisfy the non-evaluativeconditions,and
so be a technically certifiabletoken of an x, but lack the relevant
evaluativeinclusion conditionsfor the token to be a trueor genuine
x. A counterfeitdollar is not a technically certifiabledollar but an
unjust law will be a technically certifiablelaw. Putting this claim
in its original context, Kretzmannsays that what Plato, Aristotle,
Aquinas and others mean when they say things suggestive of the
non-est-lex slogan is that "laws that fail to fulfil a certain moral
conditionare not full-fledgedlaws even if they are on the books."10
Following Aquinas,Kretzmannaddsthatwe can regardsuch tokens
as perversions (not fakes or counterfeits)of the kinds they purport
to be.
The distinction between a technically certifiableand a true or
genuine instance of a conventionalkind seems to provide a way
of explainingthe naturallaw slogan that does not commit it to the
absurditiesthatareoften attributedto it. An unjustlaw is a law thatis
on the books, butit is a law in a merelytechnicalor formal,not fully-
fledged, sense. This explainswhy unjustlaws mightbe identifiedas
laws by naturallawyers and others while still permittingthe literal
meaning of "true"and "genuine"and "authentic"to be reserved
for just laws only. Unjust laws can appearto be genuine laws on
the surfacebecause they satisfy technical or formal conditions for
something being a law, but on closer inspection (including after
reflection and argumentabout the natureof law) they turn out not
to be genuine because they omit some fundamentalfeatureof law.
Hence an unjustlaw is not a true law.
As Kretzmannremarks, these types of claims are commonly
reflectedin languageabout conventionalkinds. Good examples for
Kretzmann'spurposes are instances of corruptjudges and corrupt
judicialjudgments.We can still referto a corruptjudge as a "judge"
and to his "judicialjudgments"insofar as he is an appointedjudi-
cial official (thusthese tokens satisfy the technicalor non-evaluative
personaluse.) The disanalogyis simply thatthe counterfeitdollarlacks an essen-
tial non-evaluativeinclusionconditionfor dollars,namely,thatof havinga certain
pedigree;but we do not have to say thatit is not a dollarin anyrespectwhatsoever.
Somethingelse is trueof certainbad laws:they meet the non-evaluativeconditions
but lack the relevantevaluativeinclusion conditions.
10
Kretzmann,op. cit., p. 100.

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 TRIALBY SLOGAN 439
inclusion conditionsfor somethingbeing a judge or a judicialjudg-
ment). But we must pause at saying he is a genuine judge or that
his judgmentsare genuine or truejudicialjudgments.We know this
because a corruptjudge fails to performa function that is essential
to his role, that of being an impartialarbiter.Indeed, this idea is
acceptedby legal positivists and naturallawyers alike. It seems that
part of the very idea of a judicial role, and therefore of being a
judge, is to performthe task of adjudicationimpartially.1lThus, we
would quite naturallysay that a judge who accepteda bribeto set a
killer free, or a baseballumpirewho was paid to fix a WorldSeries
game, was not acting as a real judge or, more simply, was "no true
judge" or "no true umpire,"and that such corruptjudgments were
not genuine examples of judicial judgmentsbut perversionsof the
idea of a judicialjudgment,and so on. We might also say that what
goes on in a corruptjudge's court, at least to the extent that it is
touchedby his corruption,is not the proceedingsof a genuine court
of law but a perversion,or a parody,or a travestyof a courtof law. In
fact, this position seems reflectedin Americanlegal practicewhere
judicial actions thatare touchedby corruptionare said to be void ab
initio, or nullified from the beginning, having no status as genuine
tokens of their kind. Even though a corruptjudge is technically an
appointedjudicial official whose nameappearson thejudicial roster,
he is not, finally, a true or genuine token of a judge, nor are his
judgmentstrue or genuine tokens of judicialjudgments.
This example is suggestive, at least in the sense that it seems to
provide an instance where an essential evaluativecomponent of a
conventionalkind is missing (impartialmotive), yet we still refer
1l Thus, Hart in "Positivismand the Separationof Law and Morals,"op. cit.,
p. 81, states

[T]here is, in the very notion of law consisting of general rules, some-
thing which prevents us from treatingit as if morally it is utterly neutral,
without any necessary contact with moral principles. Natural procedural
justice consists thereforeof those principles of objectivity and impartiality
in the administrationof the law which implementjust this aspect of law and
which are designed to ensurethatrules are appliedonly to genuine cases of
the rule or at least to minimize the risks of inequalitiesin this sense.

Hartimmediatelyremarksthat this minimummoral content of a legal system is

consistentwith the impartialapplicationof the most "hideouslyoppressive"laws.

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440 J.S. RUSSELL

to the relevanttokens as being present,albeit in a merely technical

(and equivocal) sense. What appearsto be a genuine instance of
a particularkind is not on closer inspection.It must be stressed,of
course,thatthe apparentfact thatimpartialityis essentialto a judge's
role does nothingto show thatjustice is essentialto forminggenuine
laws. But unjust laws could be like this, and this is undoubtedly
the sort of claim that is standardlycontemplatedby naturallawyers
when they use the non-est-lex slogan. The use of dismissive judg-
ments is at least consistent with this sort of claim (althoughI will
arguelaterthatit does not entail it).
A similarsort of analysis also helps to explain a whole range of
commonly expressed dismissivejudgments,for example, ones that
are made about fair weather friends, plagiarizedterm papers, bad
art,incompetentcolleagues, brokendown can openersandcars, and
even the sous-chef's culinary misadventures- "That'sno souffle!
A bad souffle is no souffle, monsieur!"- and so on. This analysis
shows thatthereis nothingflatly contradictoryor nonsensicalabout
dismissive judgments. Dismissive judgments are all around us.
They are used to express emphatically the importantand useful
idea that there can be something radically wrong or incomplete
aboutthe functionalevaluativecomponentsof some apparenttokens
of conventional kinds. Typically, such judgments are expressed
by someone who believes that the thing being dismissed fails to
performor serve its recognizedfunction,and so is regardedas being
presentas a token of its kind in a merely formaland equivocalway.
Thus, a corruptjudge is evidentlynot a genuinejudge, a plagiarized
term paper is evidently not a real term paper,and a bad souffle is
evidentlynot a true souffle.
But while ordinary language, through the use of dismissive
judgments, seems implicitly to recognize a distinction between
non-evaluative(or technical) and evaluativecomponentsof certain
conventionalkinds, some aspectsof Kretzmann'sanalysisare separ-
able from this claim and may even appear to be in tension with
it. In particular,Kretzmann'sreferences to technical and evalu-
ative "inclusion conditions"and to "essential"features of certain
conventional kinds may be taken to imply that dismissive judg-
ments about certain conventionalkinds presupposethat there are
essential propertiesfor such kinds and that they make up a set of

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 TRIALBY SLOGAN 441

necessary and sufficientconditionsfor definingthe concept at hand

(money, law etc.).12 But there is no reason to think that the tech-
nical/evaluativedistinction must refer to any essential properties
of the kinds in question. This has to be argued, as we shall see.
As well, according to an account of definition accepted by many
analyticphilosophers,if an inclusion condition (implicitly a neces-
sary condition) of a kind is not present, the kind is not present at
all. No distinctionis contemplatedbetween technical and genuine
tokens of a kind accordingto this account of definition.It follows
that this way of understandingand defining concepts appearstoo
unrefinedfor Kretzmann'spurposesand may even be at odds with
it. In fairnessto Kretzmann,he may well have meant to leave some
of these mattersopen. He never, for example, explicitly states that
his inclusion conditions for law amount to a set of necessary and
sufficientconditions. And of course, this account of definitionhas
been the subject of substantialcriticism and controversyfor some
time now among philosophers of language. One of the generally
recognizedproblemswith this accountis just the difficultyin being
able to refer to the vague or equivocal presence of certainproper-
ties.13Kretzmann'ssemanticanalysis of certainconventionalkinds
may be takenas furtherevidence of this sort of problem.
I develop the implications of some of these remarks further
below. For now, it needs to be noted that there is nothing that is
absurdlynonsensical or obviously conceptuallyconfused from the
startabout dismissive judgmentsabout law or many other conven-
tional kinds. On the contrary,the point of such judgments is to
direct attention to importantnon-technical, evaluative matters of
practicalinterestwhere reformis necessary.This suggests, too, that
the conservativeandanarchyobjectionsaboutthe non-est lex slogan
are wrong. They simply mistakethe point of suchjudgmentswhich
is to identify and to take seriously,not to overlookor ignore, crucial
problemsof practicalor functionalimportancethatrequirereform.
12
Supra,note 7.
13 A classic discussion of the artificial
precision of earlieranalytic approaches
to definitionis in HilaryPutnam's "The Meaningof 'Meaning,'"Mind, Language
and Reality; Philosophical Papers Volume 2, CambridgeUniversityPress, 1975.
Philosophers from the ordinarylanguage and non-analytic traditiongenerally,
many of whom have been influencedby Ludwig Wittgenstein,are critical of the
artificialrigidityof the analyticapproachto meaningand definition.

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442 J.S. RUSSELL

III

Kretzmann'sanalysis makes clear sense of the non-est-lex slogan

andmakes a case for its practicalrhetoricalvalue. But we mightask,
then, whether it marks any interestingdistinctionbetween natural
law theories and legal positivism and whetherthe slogan implies or
confers any practicaladvantagefor naturallaw theories.Kretzmann
never explicitly makes any such claims, although they may seem
implied by his discussion. To be fair, his main aim is to demon-
strate the coherence of the slogan as part of a general attemptto
show thatnaturallaw theory affordsthe basis for responsiblemoral
assessmentof laws. He is thus primarilyinterestedin respondingto
the conceptual,conservative,and anarchyobjectionsto naturallaw
theory.But these other questionsare at least left open, and they are
important,particularlyfor the way that answersto them can help to
sharpendebatebetween naturallawyers and legal positivists.
In fact, Kretzmann'sdiscussion does not show that the slogan
confers or reflects any distinctivenormativeadvantagesthat natural
law theorieshave over legal positivism,nor is this plausible.For the
same moralconsiderationsthatweigh for dissentandreformor even
disobedience in connection with unjust laws are availableto both
natural lawyers and legal positivists alike. The slogan obviously
does not identify what these are;moralreflectionand argumentdo,
and they precede the applicationof slogan. The slogan represents,
in effect, a rhetoricalsummaryof a prior assessment of the merits
and demeritsof a technicallycertifiablelaw.
Naturallawyers and legal positivists, then, are apparentlyon the
same methodologicalfooting with respect to the moral assessment
of laws.14Justlike the legal positivist, the naturallawyer,too, must
begin by knowinghow to identifytechnicallycertifiableinstancesof
laws (roughly,properlypromulgatedlaws) and then proceed to an
evaluationof their merits and demerits.This is clearly recognized
and given in Kretzmann'sanalysis of law as comprised of both
non-evaluativeand evaluative inclusion conditions, for it has the
implicationthat the evaluativeconditionsare only at issue once the
14 Kretzmannnever denies this. As mentioned
already,his main aim seems
to be to show that naturallaw theory faces no special impediment to moral
assessmentof laws.

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 TRIALBY SLOGAN 443
non-evaluativeconditions have been met.15With respect to unjust
laws, the natural lawyer simply makes the additional claim that
they are not genuine laws, since they fail to meet certainevaluative
conditions.
In the passages referredto previously,Austin, Bentham,andHart
write as though the practicalconfusions to which they argue non-
est-lex is liable count generally against naturallaw theory. Given
the apparentcoherence of the non-est-lex slogan and the fact that
there seems to be no clear methodologicaldifferencebetween these
positions in assessing the justness of laws, the positivist view that
the slogan and naturallaw theories generally have the potential to
blind us to many importantpractical issues seems too quick. But
even if Austin and others are right, this does not count against the
metaphysicalclaim thatin some sense unjustlaws are not laws. The
anarchyand conservativeobjectionsoften seem to confuse the truth
value of the theory with the rhetoricalvalue of its slogan (see the
passage from Hart in the first section). The fact, if it is one, that
non-est-lex is liable to be misunderstoodor misused does not imply
that the distinctive metaphysicalclaim that it purportsto make is
false - any morethanthe common andpersistentmisperceptionthat
Einstein's theory of relativity proves that "everythingis relative"
counts againstthe truthof thattheory.16
The main issue represented by the non-est-lex slogan, then,
seems to be conceptualand metaphysical,namely, whethercertain
moral considerationsare fundamentalto law itself. In fact, it is
normally accepted that if the slogan does anything distinctive, it
asserts that there is some essential connection between law and
morality.17This is where the debate needs to be joined. But it

15
Supra,note 7.
16 In fact, it is even possible for a naturallawyer to accept that the rhetorical
value of the slogan is poor enough that it should be discardedfor all practical
purposes in favour of a strictly positivist method of assessing laws, that is, by
looking at technically certifiablelaws and consideringtheir merits and demerits.
This is still consistent with the truth of the claim that any technically certifi-
able laws that are evaluatedas unjust are not genuine laws, even if legislators
and others are not encouragedto draw this implicationbecause it would tend to
confuse them.
17 Kretzmann,op. cit., p. 105. Lyons, op. cit., pp. 62-63. Altman,op. cit., p. 34.
John Finnis may be an exception, but this has raised doubts among many of his

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444 J.S.RUSSELL

is instructive to reflect on whether the non-est-lex slogan actu-

ally does assert anythingdistinctive of naturallaw theory in light
of Kretzmann'sanalysis of it as a type of dismissive judgment.
Kretzmannholds that commentatorslike David Lyons take "just
the right line" when they maintain that the point of the slogan
is to assert an essential connection between law and morality.18
The idea here is that a law that fails to satisfy one of the relevant
inclusion conditions is lacking some essential component that is
requiredfor it to be a genuine law. While this is undoubtedlythe
standardnaturallaw position, it does not follow from the analysis
of dismissivejudgmentson its own, for there is no reason to think
that dismissivejudgmentsmust claim that the inclusion conditions
of any conventionalkind are essential. They may be merely agreed
upon or conventionalinclusion conditions. If this is so, it follows
that a legal positivist could also make dismissive judgments about
laws, since thatdoes not have to imply any commitmentto asserting
an essential connectionbetween law and morality.
Consider the following two examples of dismissive judgments:
"A mail-orderuniversityis not a university"and "Yourresearches
into cold fusion are not science - bad science is not science!"
These are each perfectly respectableexamples of dismissivejudg-
ments, but the expression of such judgments does not require
that the purportedperversions of the conventional kind "univer-
sity" or "science" fail to meet essential conditions for something
being a university or a science. For example, I take it that it is
a matter of argument,indeed of continuing argument,what the
functional components and purposes of a university are. Yet we
have, through experience and argument,evolved a certain recog-
nized understandingof what the importantfunctionalrequirements
of a universityshould be, and institutionsthat fail to fit this under-
standingwill not count as genuineuniversitiesandtheirdegreeswill
not count as genuinedegrees.This recognizedunderstandingallows
us to say that a "mail order"universityand "mail order"degrees
are not real tokens of what they purportto be. However, it does
not follow that dismissivejudgmentsbased simply on a recognized

commentators as to whether he is a natural lawyer. See Natural Law and Natural

Rights, Oxford University Press, 1980, ch. 1.
18
Kretzmann, op. cit., p. 105.

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 TRIALBY SLOGAN 445

understandingof what makes a universitymust make claims about

essential inclusion conditions.
A similar point appearstrue about science. What we mean by
science today is a set of recognized methodologies for seeking
knowledge thathave evolved by argumentand trial and errorover a
great deal of time. But if the trendof recent work in philosophy of
science is to be accepted, we have no a priori way of determining
what epistemologicalmethods for forming and revising our beliefs
will reliably lead us to the truth (or closer to it). One commonly
accepted implication of this view is that we have no grounds to
thinkthatcurrentmethodologiesare essentialto the task of pursuing
knowledge. Othermethodologiesmight do as well or better.19Yet,
proponentsof this "naturalized"view of science often want to say
that those methodologies that do not measure up to recognized
currentstandards"arenot science," in particularwhere they think
that currentmethods are more reliable at tracking the truth. But
by this they do not make, or have to make, any claim that those
current methods are essential or ineluctable features of anything
called "science";nor would it be necessaryfor anyoneto make such
a claim by makinga dismissivejudgmentaboutbad science.
What this shows is that dismissive judgments do not entail that
the so-called inclusion conditions for something being accepted
or regardedas a genuine, or true, or real token of a conventional
kind must be essential ones. The examples suggest that the inclu-
sion conditions may just be well-justified or widely agreed upon
standardsfor somethingbeing a token of a particularconventional
kind. This is a modest point aboutthe flexibilityof dismissivejudg-
ments, but the odd result of it is that even a legal positivist could
make dismissivejudgmentsaboutlaws withoutbeing committedto
asserting an essential connection between law and morality.That
is, a legal positivist might say something like "it is universally
agreed that laws should not be unjust, so let's agree to recognize
that unjust laws will not count as genuine laws." (Compare the
naturalizedscientist or philosopherof science: "We'reagreed for
now that science should uphold these standards,so let's agree that
something is not science if it fails to uphold them.") Now this
19 W.V.O.
Quine, "EpistemologyNaturalized,"and "NaturalKinds,"in Onto-
logical Relativityand OtherEssays, ColumbiaUniversityPress, 1969.

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446 J.S. RUSSELL

would admittedlybe a very odd thing to put in the mouth of a legal

positivistin light of the historyof this debate,but since the analysis
of dismissive judgments does not requirethat the inclusion condi-
tions arealways essentialfeaturesof the kindin question,ratherthan
simplybeing conventionallyagreeduponfeatures,thereis no reason
for a positivist to think that the coherence of the slogan by itself
marksa division with, or even implies a threatto, positivism about
law. It remains,not surprisingly,a matterfor argumentwhetherthe
essential conditionsfor law include evaluativeconditions.

IV

The upshot of this is that the non-est-lex slogan by itself not

only fails to captureor reflect any practicaladvantagethat natural
law theories purportedlyhave over legal positivist theories, it also
fails on its own to mark an interestingconceptualor metaphysical
disagreementas well. I thinkthis is a happyresult.Slogans arerarely
the place to begin or focus argumentson philosophicaldisputes.The
issue between naturallawyers and legal positivistsis fundamentally
over whether law and morality are essentially connected in some
way, andthe debatebetweenthem shouldfocus on the argumentsfor
and against this position. Historically,the standardargumentfrom
naturallawyershas been thatlaw is an expressionof practicalreason
and that practicalreason is regulatedby moral principles, so that
laws thatfail to incorporatea certainmoralcontentare not genuine
laws even if they are on the books. Unjust laws are ultimately,
then, perversionsof practicalreason. The main philosophicalissue
in this context concerns whetherpracticalreason incorporatesand
is governed in some relevant way by morality. If so, this shows
that a legal system is intrinsicallyconnected with a moral system
because of the specific moralizednatureof practicalreason and the
fact that both systems are expressions or realizations of practical
reason in some sense. A theory of practicalreason can also be the
propercontext in which to understandnaturallaw ideas of obliga-
tion to obey the law. Classic naturallawyers like Aquinashold that
obligations derive from principles of practicalreason that express
the naturallaw, so that where positive law does not reflect prac-
tical reason genuine obligations do not exist to obey it (although

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 TRIALBY SLOGAN 447
there could still be a technical sense of legal obligationthat is rele-
vant).20
This is where the debate needs to be joined but this issue has
received scant attentionfrom legal positivists and other commen-
tators when they review naturallaw theory.21When it is acknowl-
edged, usually in passing, the discussion fails to admit that any
genuinely interestingissue exists or that there is a range of inter-
esting positions open to naturallawyers.22By contrast,the natureof
practicalreasonand its connectionwith moralityandlaw has been a
lively topic among naturallawyers for a very long time, produc-
ing a wide variety of views, including those of Plato, Aristotle,
Aquinas, Locke, Kant and, more recently, Fuller and, especially,
Finnis, to name only a few.23Moreover,formulatingthe main issue
in these terms makes it clear that the disagreementsbetween legal
positivists and naturallawyers are not as sharpas many commen-
tators have contended. Natural lawyers are not committed to the
absurdposition thatunjustlaws or unjustlegal systems do not exist
or that they have the status of counterfeitmoney or that non-est-
lex encourages anarchyand conservatismat the same time. What
naturallawyers are interested in investigating and defending are
certaintypes of non-instrumentalaccountsof practicalreason.Many
legal positivists are undoubtedlyalso interestedin this issue too.24
If so, a re-focusing on the propersource of disagreementmay have

20
Kretzmann,op. cit., pp. 114-121.
21 for
See, example, Altman, op. cit., pp. 33-49, Hart,Essays in Philosophy
and Jurisprudence,pp. 80-82, 111-113, Lyons, op. cit., pp. 7-10, 62-68, and
Kent Greenawalt,Conflictsof Law and Morality,OxfordUniversityPress, 1987,
pp. 163-164.
22 Cf. Hart,Essays in Jurisprudenceand Philosophy,p. 113, and The Concept
of Law, ch. 9.
23 For example, a philosopher whose allegiance may be closer to a natural
law outlook than is normallyrecognized is J.S. Mill. Mill is normally taken to
be a critic of naturallaw (see Hart, The Concept of Law, pp. 182-183), but his
account of practicalreason suggests otherwise. According to recent scholarship,
Mill holds thatthe principleof utility is the supremeprincipleof practicalreason
and moralityis an aspect of thatprinciple.Any unjustlaw will, therefore,violate
both moralityand fail as a properexpressionof practicalreason.See D.G. Brown,
"Mill'sAct-Utilitarianism," Philosophical Quarterly24 (1974): 67-68, andDavid
Lyons, "Mill's Theory Morality,"Nous 10 (1976): 101-120.
of
24 The
example of J.S. Mill may be instructive.See supra, note 23.

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448 J.S. RUSSELL

the effect of encouraginga re-thinkingof allegiancesandenlivening

a debatethathas been moribundfor quite a while.
Furtherproductive debate between natural lawyers and legal
positivistsaboutthe natureand statusof law may, therefore,depend
on a willingness to engage in discussion over the natureof prac-
tical reason and its relationto law. This is not the place to take up
or review this issue, but it appearsclear that the legal positivists'
frequentfocus on the non-est-lexsloganratherthanon the substance
of naturallaw theory has meant they have often been talking past
their opponents.Naturallawyershave been tryingto drawattention
to these mattersfor just as long. Perhapsmaking it plain that the
non-est-lex slogan does not on its own markany interestingdiffer-
ence between naturallawyers and legal positivists will force the
debate onto mattersof genuine substance.But if so, it also appears
that the disagreementmay be purely metaphysical,having little or
nothingin the way of distinctivenormativeimplicationsthatcan be
lined up on each side of the debate. For it is likely that the same
range of substantivemoral prescriptionsis possible within both
instrumentaland non-instrumentalconceptionsof practicalreason;
and moreoverwe might expect that the most plausible accounts of
practicalreason will be allied in wide agreementon the practical
substance of morality.In this respect, a comparisonof Aquinas's
non-instrumentaland Austin's basically instrumentalviews about
practicalreason with their fairly closely agreeing substantiveposi-
tions on civil disobedienceis, again,instructive.25The debate,then,
is likely to be metaphysicalandexplanatory,not practical,in nature.
At least it remainsto be shown otherwise.
Perhaps the apparentlack of any practical normativepay-off
will make the debate about the nature of law seem unimportant
or unattractive,and it is possible that this is one reason that legal
positivists, who have tended to be active, liberal reformershave
mainly ignored it. But while considerationof the natureof law and
its relationshipto practical reason may have no readily apparent
practicalpay-off, this does not mean thatit is philosophicallytrivial
or unimportant.Justbecausephilosophydoes not always bakebread
does not mean that it does not address matters of genuine intel-
25
Indeed,it is even closer if we think,as manycommentatorshave, thatAustin
tends to over-estimatethe threatto society from civilly disobedientacts.

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 TRIALBY SLOGAN 449

lectual interestand substance.Some controversiesin philosophyof

law may turn out to be like this. If so, they will hardlybe anoma-
lous.26

Departmentof Philosophy
Universityof BritishColumbia
Vancouver,BC V6T 1Z1
Canada
E-mail:[email protected]

26 I express my thanksto David Lyons and Colin Macleod for constructiveand

challengingcommentson an earlierdraftof this paperand also to audiencesat the
Universityof Victoriaand at the 20th WorldCongressof Philosophyin Boston for
theircontributions.This paperis dedicatedto the memoryof NormanKretzmann.

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