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Legal Naturalism and Just Legal Systems

Randy E. Barnett

“Toward a Theory of Legal Naturalism.” Journal of Libertarian Studies 2 (1978): 97–107.

Although positivist and natural law theories are ancient adversaries, both positions address genuine aspects of law. All natural law theories agree that “there is some objective standard or ‘higher law’ against which positive (man-made) law can and should be measured.”

Legal positivism, which is more complex, may be broken into three versions: Imperativism, which stresses that law is sovereign or autonomous in issuing commands (e.g., John Austin); Normativism, which stresses that law is based on some ultimate norm, namely, “the rule of recognition” (H. L. A. Hart); and Legal realism, which stresses the processes by which positive law comes into force, e.g., via the actions of legal authorities (Karl Llevellyn and Alf Ross). The last is the positivist thesis considered in this paper. The main dispute is between natural law and legal realist advocates (see Edward A. Purcell, Jr., Crisis of Democratic Theory).

What is the “legal process”? It is the system by which positive law is determined and it has “a purpose or function” (Lon Fuller, F. A. Hayek). The prime purpose of law is simply to discern and enforce legal duties. Thus far this is consistent with natural rights and natural law theory. Legal naturalism, the view advanced here, “adds to the search for the substantive law which best suits the nature of man, a search for the legal system or systems which best ‘fits’ the nature of law.” Whereas positivism takes law as fact, legal naturalism considers law “an enterprise, an activity with a purpose.” So we can ask of a legal system whether it “is successful or unsuccessful.” Following Lon Fuller, Barnett argues “that a law-maker should itself obey the rules it sets up to govern its citizenry.” Thus “the State is a source of law inconsistent with this (Lon Fuller's) principle.”

If Fuller carried his analysis far enough he would see “that a State legal system doesn't conform to the principle of official congruence with its own rules.” On the other hand, the legal positivist/realist sees that this is so and concludes, “that State-made law is sui generis.” This is why the legal positivist/realist associates “‘coercion’ with the definition of law.” The insight of legal positivism/realism is its recognition of “the essential nature of the State, the predominant source of law.” Being, as Max Weber recognized, “a continuous organization. . . if and insofar as its administrative staff successfully upholds a claim to the monopoly of the legitimate use of physical force in the enforcement of its order,” a State must violate the principles of the natural law system that consist in natural rights, since its monopoly requires the use of coercion. Its power to tax, which Barnett claims is one of the State's “central characteristics,” also violates human rights, and is inconsistent with the natural law principles of a legal system. Therefore, State cannot be based on natural law, and this is what legal positivists/realists, who stress the study of the process of legal development, confused with the claim that a legal system as such cannot be based on natural law.

Legal naturalism advances natural rights as constraints upon the process by which law should evolve and uses the various legal activities under this constraint to produce a legitimate system of law.