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Natural Law Theories

Jonathan Crowe*
University of Queensland

Abstract
This article considers natural law perspectives on the nature of law. Natural law theories are united by
what Mark Murphy calls the natural law thesis: law is necessarily a rational standard for conduct. The
natural law position comes in strong and weak versions: the strong view holds that a rational defect in
a norm renders it legally invalid, while the weak view holds that a rational defect in a legal norm renders
it legally defective. The article explores the motivations for the natural law position, before considering
three lines of natural law argument found in the literature. I conclude by examining the arguments offered
by John Finnis and Murphy in support of the weak natural law view. I suggest that these arguments fail to
impugn the strong natural law thesis. Indeed, the functional argument outlined by Murphy provides a
plausible route to a hybrid natural law view that incorporates both weak and strong claims.

A theory of law, according to Joseph Raz, aims to identify necessary truths about law that
explain what it is (2005, 324). What sorts of claims about law plausibly fall into this category?
Here are two possible candidates:
(1) Law is necessarily a socially recognised standard for conduct.
(2) Law is necessarily a rational standard for conduct.
Claim (1) is almost universally accepted among contemporary legal philosophers. However,
(2) is disputed. Mark Murphy calls (2) the natural law thesis (2003, 244; 2005, 15); views that
endorse it are known as natural law theories.1
The basic thought behind (1) runs as follows. Social conventions designate particular people,
bodies and practices as holding the capacity to create or modify legal norms. Legislatures, for
example, are recognised as having the authority to create new laws, while judges are recognised
as having the power to make legally binding decisions. Legal officials seek to apply these
conventions when identifying legal constraints on their actions. A norm holds legal status only
if it is recognised by these sources. The existence and content of law is therefore a matter of
social fact. This basic picture, as I said, is generally accepted. However, views differ on whether
it tells the whole story.
One such dispute concerns rational constraints on lawmaking. The basic thought behind (2)
concerns the role laws play in the community. The function of law, it seems, is to guide action.
It exists to mark the boundaries of permissible social conduct. Law that fails to supply adequate
reason to do as it requires is poorly adapted to this role. This suggests that law’s capacity to play
its function depends on its ability to engage human reason. Furthermore, law typically claims to
guide action in the service of some higher goal, such as justice or the common good. A standard
that runs contrary to justice or the common good therefore seems defective as law.
1. Strong and Weak Natural Law
The leading contemporary legal philosophers working within the natural law tradition – includ-
ing John Finnis (2011a), Murphy (2006a, 2013), Michael S. Moore (1992, 2001), Robert Alexy

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(2008, 2010a, 2010b), Lon Fuller (1969) and Michael Detmold (1984) – all endorse some varia-
tion on (2). However, the claim comes in strong and weak versions (Murphy 2006a, ch. 1;
Murphy 2013; Crowe 2012, 164–6).2 The natural law thesis holds that law is necessarily a
rational standard for conduct. What, then, should we say about a putative law that fails this
standard?
The strong natural law view interprets the natural law thesis as stating an existence
condition for law. Law is a rational standard for conduct in the same way that a square
is a shape with four sides: anything that fails this standard fails to qualify as law. The weak
natural law view, by contrast, interprets the claim as stating a non-defectiveness condition
for law. Law, on this view, is a rational standard for conduct in the same way that an alarm
clock is a device that wakes people up in the morning: anything that fails this standard
either fails to count as law or is defective as law.
The strong view, then, holds that a rational defect in a norm necessarily renders it
legally invalid, while the weak view holds that a rational defect in a legal norm necessarily
renders it legally defective. The two leading contemporary natural law theorists, Finnis
and Murphy, both favour the weak view, albeit for different reasons. (I will consider their
views more closely later in this article.) The leading contemporary defender of the strong
view is Moore (1992, 2001), but versions of the claim are also defended by Fuller
(1969, 39) and Alexy (2008, 281; 2010, 177).3
2. Natural Law and Legal Positivism
An opposition is traditionally drawn between natural law theories and legal positivism. We have
seen that natural law theories emphasise that law is a rational standard for conduct. The legal
positivist tradition, by contrast, focuses on the idea of law as a socially recognised standard. Legal
positivist views, like natural law theories, come in two main varieties. Inclusive legal positivism
holds that social sources are the only necessary factor in determining legal status (see, e.g. Hart
2012, 250–4; Coleman 2001, 67–148; Waluchow 1994). In some legal systems, however,
the recognised social sources may incorporate rational standards into the test for legal validity.
A commonly cited example is the Eighth Amendment to the United States Constitution,
which prohibits ‘cruel and unusual punishments’. One view of this provision is that it makes
the validity of laws relating to punishment dependent on their reasonableness.
Inclusive legal positivism therefore accepts that, in some legal systems, whether some-
thing is a law may depend on not only its sources but also the rationality of its content.
This, however, is a contingent matter depending on social practices. Exclusive legal
positivism, on the other hand, holds that the existence and content of law can only ever
depend upon social facts (see, e.g. Raz 1979, ch. 3; Raz 1995, ch. 10; Shapiro 2001). It
is therefore necessarily true that whether something counts as law does not depend on its
rationality. A provision like the Eighth Amendment, on this view, does not incorporate
rational standards into the law. Rather, it gives judges a discretion to create new legal
norms about the meaning of ‘cruel and unusual punishments’. The content of law there-
fore still depends on its sources, not its merits.
Inclusive and exclusive legal positivism are united by the claim that social sources are the only
necessary factor in conferring legal status. Exclusive legal positivism also makes a more robust
claim: necessarily, whether something holds legal status only depends on social sources. This yields
the following two views:

LPI The only necessary factor in determining whether something counts as law is recognition by
social sources.

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LPE It is necessarily true that whether something counts as law depends only on recognition by
social sources.
Both versions of legal positivism contradict the strong natural law view that a rational defect
in a norm necessarily renders it legally invalid. However, they are technically compatible with
the weak natural law view that a rational defect in a norm renders it legally defective. Both LPI
and LPE concern the existence conditions of law; they have nothing to say about when a legal
standard is defective. The potential for convergence between weak natural law theories and
legal positivism is apparent in the work of authors from both traditions. Finnis, for example,
effectively affirms LPI as an account of the existence conditions of law (2011a, ch. 10;
2011c, 185), while Neil MacCormick has endorsed the weak natural law claim within a legal
positivist framework (1992, 108).
There are, however, significant methodological differences between the natural law and legal
positivist outlooks (cf. Murphy 2006a, 23–4). Natural law theories, by focusing on the idea that
law is a rational standard for conduct, tend to take the view that one cannot have a complete
descriptive theory of law without a comprehensive examination of how law can be rationally
binding. A descriptive theory of law, then, requires examining law’s normative foundations
in ethics and politics. Legal positivism, by focusing on law as a socially recognised standard, tends
to the view that a complete descriptive theory of law does not depend on examining law’s
rationality. This methodological divergence arguably constitutes the main rift between the
two traditions.
3. Motivating Natural Law
Legal positivism is the dominant view in contemporary legal philosophy. It is so widely accepted
that people sometimes find it hard to see what motivates the natural law position. Natural law,
as we have seen, supplements (1) with (2). However, this move is unmotivated unless there is
something important about law that (1) cannot capture. What, then, is the motivation for
extending the necessary features of law beyond social sources? What aspects of law is legal
positivism unable to explain?
Natural law theory and legal positivism can both be viewed as attempts to explain and
systematise what we might term the popular view of law: the beliefs ordinary people hold about
law prior to systematic ref lection. Both schools of thought seek to make sense of two central
aspects of the popular view. The first component is that law is a set of social rules: it is a collection
of normative standards accepted as binding by members of a community. Most people readily
grasp, for example, that law differs between jurisdictions and that this is due to the role of local
sources in fixing its content. The second component of the popular view is that law holds serious
normative weight.4 People often think they have some kind of obligation to comply with the law,
just because it is the law. They do not view this obligation as absolute: people regularly disregard
laws they regard as frivolous and applaud defiance of laws they see as unjust. Nonetheless, they
think that it is often right to do as the law requires, even if it is contrary to their self-interest.
The content of the popular view of law is an empirical question. However, natural law
theorists and legal positivists alike frequently take the two features outlined above as central to
popular understandings of the concept (see, e.g. Finnis 2011a, ch. 10; Murphy 2006b, 4–11;
Crowe 2014a, ch. 1; Hart 2012, ch. 5; Raz 1999, 149–54; Postema 1982, 165–6; Coleman
1989, 66). The point of contention between the schools is how to move from this folk theory
of law to a unified and coherent account. An initial problem arises from the fact that the two
features noted above appear to be in tension. Many philosophers think that there is no generic
obligation to follow the positive law. However, this means that the idea that law is a set of social

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rules is in tension with the notion that law holds serious normative weight. Some positive laws
simply lack normative force.
The legal positivist response to this dilemma is to focus on the role of social sources in deter-
mining legal status, as captured in (1). This means legal positivism has no trouble accommodating
the idea that law is a set of social rules. However, legal positivists have struggled to account for the
popular belief that law has serious normative weight. H. L. A. Hart, the founder of contemporary
legal positivism, tried to explain law’s generic normative force through a specialised notion of
legal obligation, based purely on the social pressure to comply with legal rules (2012, 82–91;
1982, 147–61, 262–8).5 However, this weak idea of legal obligation is a mere shadow of that
which appears in the folk theory. Raz, the leading contemporary legal positivist, takes a different
approach. He contends that law, properly understood, merely claims generic normative force: the
popular belief that it actually has generic force is mistaken (1999, 149–54; 1979, ch. 12).6
One indicator of a good theory of law is surely its ability to account for folk understandings of
the concept. We should not, of course, demand that legal theorists simply endorse without
question all the elements of the popular view of law, especially if they turn out to be mistaken
or incoherent. However, if the folk conception turns out to be false, a good theory of law
should offer an explanation of how it came to arise. Legal positivists have done their best to
discharge this burden, appealing to sanctions, social pressure and the claims of legal officials
to explain why people see law as binding. Nonetheless, legal positivism cannot accommodate
anything like the popular idea of legal normativity. It therefore offers only a weak account of
a central facet of the folk theory of law.
Natural law theory, on the other hand, vindicates both components of the folk theory
outlined above. It holds both that law is a set of social rules and that law necessarily has rational
force (in the sense that a norm lacking rational force is either not law or legally defective). The
natural law view therefore has no trouble accounting for the normativity of law. However, this
advantage comes at a potential cost: if practical rationality imposes a test for legal validity or
defectiveness, then it seems likely that at least some (and perhaps many) positive laws will fail
to meet this standard. Unless natural law theorists can explain why people generally have reason
to comply with the positive law, their theory risks undermining the notion that law is defined
by its social sources. It is for this reason that natural law theories often combine a descriptive
theory of the grounds of law with a normative account of the rational force of positive legal
rules.

4. Morality or Rationality?
Natural law theory is often regarded as a theory about the relationship between law and moral-
ity. It is widely associated with the slogan ‘an unjust law is no law at all’ [lex iniusta non est lex], a
version of which appears in the writings of Augustine (1993, bk 1, pt V).7 However, the natural
law thesis, as I have presented it above, focuses instead on law’s connection to practical rational-
ity. Murphy specifically denies that the central claim of natural law jurisprudence is properly
framed by reference to morality. Rather, he argues, natural law thought has always been more
concerned with the issue of law’s rationality. The core of natural law jurisprudence, for
Murphy, is therefore not that a standard is legally defective if it fails a moral test, but that a
standard is legally defective if not backed by decisive reasons for compliance (2006a, 3).
The distinction between morality and rationality here is subtle, but important. A law may be
morally sound, but nonetheless fail to provide its subjects with sufficient reasons to comply with
it. It might, for example, be procedurally defective. Alternatively, it might lack rational force,
not due to any moral defect, but because it is inferior to existing social norms in promoting
its objective.8 The opposite might also be a true: a law might provide decisive reasons for

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compliance, despite being morally defective. A person might have reason to obey a morally
defective law if it is backed by compelling sanctions. Similarly, a law that provides the only
available response to an important social coordination problem might be rationally binding,
despite being morally f lawed.
Murphy is far from alone in regarding the natural law tradition as more concerned with law’s
rationality than its consistency with morality or justice. Finnis makes a similar point when he
characterises the status of unjust laws as ‘a subordinate concern of natural law theory’
(2011a, 351). No leading natural law author, Finnis argues, has made unjust laws a central topic
of discussion. Rather, he contends:

The principal concern of a theory of natural law is to explore the requirements of practical reasonable-
ness in relation to the good of human beings who, because they live in community with one another,
are confronted with problems of justice and rights, of authority, law, and obligation. And the principal
jurisprudential concern of a theory of natural law is thus to identify the principles and limits of the Rule
of Law, and to trace the ways in which sound laws, in all their positivity and mutability, are to be
derived … from unchanging principles … (2011a, 351)

The main concern of natural law theory, in other words, is to explore how law can be based
on principles of practical rationality so as to engage the rational agency of legal subjects. This
enquiry clearly encompasses issues about the relationship of law to morality and justice, but it
also covers a range of other questions.
Finnis draws in this passage, as he does consistently throughout his work, on the writings of
Thomas Aquinas. A reading of Aquinas’s treatise on law in the Summa Theologiae reveals relatively
little concern with unjust laws. The focus, rather, is on how laws can be rationally binding.
Aquinas famously argues that human laws can be based on natural law in two ways: some laws
are logically deduced from the precepts of natural law, whereas others are specifications of those
precepts (1948, I-II, q. 95, art. 2). Human laws that are not based on the natural law in either of
these ways are perversions of law and do not bind in conscience (Aquinas 1948, I-II, q. 95, art. 2;
q. 96, art. 4). They are perversions of law not primarily in the sense of losing their legal validity,
but rather because they do not properly instantiate the purpose of legal order.
The persistent theme of natural law jurisprudence, then, is that the essence of law lies in
supplying members of the community with shared rational standards for action. The idea that
natural law theory is narrowly concerned with imposing a moral test on legal validity misunder-
stands the tradition. Natural law theories are interested in how laws can function in such a way
to engage human rationality. This is a much broader topic than avoiding unjust enactments.
A law that is unjust may fail to supply a rational standard, but to say that laws should not be
unjust only goes a small way towards explaining how it is that laws can become integrated
with human agency.
5. Three Lines of Argument
Natural law theorists have offered a variety of arguments for their preferred versions of the view
discussed above. The most prominent arguments can be placed into three categories. The first
line of argument presents law as a hermeneutic concept: its role is to explain and justify normative
social practices, which it can only do if we assign the concept normative weight. This kind of
argument is famously advanced by Finnis in the opening chapter of Natural Law and Natural
Rights (2011a, ch. 1). Finnis contrasts two methodologies one might use to define law. One
possible approach would be to examine every law or legal system that ever existed throughout
history and try to identify the characteristics they have in common. If this were possible, it

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would result in a very broad definition. It would appeal to the lowest common denominator of
all laws.
A more fruitful methodology, Finnis argues, would be to focus on identifying a
perspective from which we can distinguish central and peripheral cases of law. We can
identify such a perspective by paying attention to law’s practical point. The central case
of law will be one that is fully engaged with human reason. Actual laws or legal systems
will resemble the central case of law to a greater or lesser extent. Finnis calls the definition
of law we get by identifying the features of the central case the focal meaning of law. We
can then say that a law or legal system that possesses all the characteristics of the central
case is law in the focal sense. There might also be laws or legal systems that possess some,
but not all, of the features of the central case. We might describe these as laws ‘in a
manner of speaking’ or in a ‘qualified sense’ (2011a, 10–11).
Finnis applies his focal meaning methodology to produce a definition of the central
case of law (2011a, 276–7). Finnis’s definition incorporates a range of social facts about
law – such as that law is a set of rules, made by a determinate and effective authority in
accordance with socially accepted procedures and backed by effective sanctions. How-
ever, he adds that law, in the focal sense, is directed to the common good of the commu-
nity – that is, to creating an environment where all members can pursue basic human
values. Finnis’s central case of law therefore both passes a source-based test (which is
necessary if it is to serve as an effective means of social coordination) and engages human
rationality by promoting the common good. A law that has all the elements of this defi-
nition will be law in the focal sense. A law that has only some of these elements, by
contrast, may still count as law, but only in a weak or partial sense.
The second kind of natural law argument treats law as a functional concept or kind: law’s
distinctive function is to direct human action through a particular method or towards a
specific end, so anything that fails in that function fails as law. Versions of the functional
argument for natural law can be found in the work of Moore (1992, 2001), Fuller (1969)
and Murphy (2006a, 29–36; 2011, 2013).9 The arguments give different accounts of law’s
function. Moore argues that law’s function is to coordinate action in the name of some
distinctive good (1992, 223–4), while Fuller contends that law’s function is to direct
human action in accordance with rules (1969, 96). Finally, Murphy argues that one of
law’s characteristic functions is providing dictates backed by decisive reasons
(2006a, 32–6).10 All three authors agree, however, that the function of law is to direct
action in some specified way. A putative legal norm that is unsuited to engage rational
agency in the way appropriate to law is properly viewed as legally defective.
The third line of argument for the natural law thesis treats law as a form of speech act,
which is defective unless it lives up to the claims it presents to addressees. The speech
act argument appears in different forms in the work of Alexy (2008, 2010a, 2010b) and
Murphy (2006a, 37–56; 2013). Alexy argues that all legal systems necessarily claim moral
correctness; a norm or system that fails to make good on this claim is therefore either
invalid or defective as law, depending on the extent of the rational defect (2010b, 177;
2008, 287–8). Murphy, by contrast, argues that mandatory legal norms can be understood
as demands issued by the law to those within its jurisdiction (2006a, 44–7). He contends
that a demand that a person A perform some action φ is defective as a speech act unless
there are decisive reasons for A to φ. It follows that, if mandatory laws are a species of
demand, then a law of this type that is not backed by decisive reasons is defective as
law. Murphy goes on to extend a similar argument to other types of legal norms by iden-
tifying them with illocutionary acts such as declarations or commitments.

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6. Finnis on Strong and Weak Natural Law

Finnis’s hermeneutic argument suggests that law in the focal sense of the term must both pass a
source-based test and engage rational agency. A law that fails to promote the common good will
be law, but only in a qualified sense. Finnis’s argument therefore yields a weak version of the
natural law thesis. Finnis further argues that the strong natural law view, as captured in the slogan
‘an unjust law is no law at all’, is ‘pure nonsense’ and ‘f latly self-contradictory’ (2011a, 364).11
He makes much of the fact that authors who may appear to endorse the claim, such as Aquinas,
nonetheless describe the standards in question as ‘laws’ (2011a, 365). He concludes that the view
is incoherent.
Finnis argues that the first reference to ‘law’ in the phrase ‘an unjust law is no law at all’ is
expository or sociological, while the second is intended as a normative evaluation
(2011a, 365). On this reading, the phrase merely asserts that a standard that is socially recognised
as law but is unjust lacks legitimate authority and need not be obeyed. Finnis evidently thinks
that this def lationary construction is necessary to save the claim ‘an unjust law is no law at all’
from self-contradiction. However, it is far from the only account one could offer. For example,
one might instead read the first reference to ‘law’ in the slogan as referring to law in the ordinary
sense of the term, while the second use of the term refers to the best available theory of law.
The strong natural law view, understood in this way, maintains that a standard that is ordinarily
called ‘law’ but fails to pass a rational test is, on the best theory of law, no law at all. There is no
incoherence in this claim. It is not uncommon for ordinary usage of a term to diverge from the
best technical understanding. Every Australian schoolchild knows that the animal colloquially
known as the ‘koala bear’ is, on the best available classification of species, no bear at all. The claim
that ‘a koala bear is no bear at all’ can be straightforwardly understood as contrasting ordinary use
of the term ‘bear’ with its more specialised biological meaning. It is far from self-contradictory.
Similar examples can easily be found in philosophical analysis. Consider, for instance, the
metaphysics of causation. The inf luential counterfactual analysis of causation offered by David
Lewis holds that A causes B if and only if, very roughly, in the nearest possible world to the
actual world where A does not occur, B does not occur either (Lewis 1973, 2000). However,
the term ‘cause’ in everyday discourse has a wider and less specialised meaning. It might there-
fore often be the case that something called a ‘cause’ in everyday discussion does not fall within
Lewis’s definition. The Lewisian view then entails that a non-counterfactual cause is, on the best
available theory of causation, no cause at all. There is no incoherence in that.

7. Murphy on Strong and Weak Natural Law

Finnis’s objection fails to impugn the strong natural law thesis. The thesis can be understood as
claiming that rationally defective laws, while perhaps falling within the ordinary meaning of
‘law’, are not captured by the best theory of law. They are, in this sense, no laws at all. Finnis’s
hermeneutic argument nonetheless only yields a weak natural law view. Murphy, for his part,
adopts a different route to the weak natural law position. He concedes that the strong view is
coherent and, to some extent, appealing. However, he argues that the weak view gives a more
compelling picture of the natural law outlook (2011, 2013). The weak natural law thesis,
according to Murphy, is more explanatorily powerful than the strong version. The strong
natural law view is most plausibly defended by relying on the weak view, while the weak view
has independent force.
Murphy argues that one of law’s characteristic functions is providing dictates backed by
decisive reasons for action (2006a, 32–6). A law that fails in this function, he claims, is defective
as law. Murphy defends this position by appealing to other examples of entities that fail in their
characteristic function (2006a, 57). An alarm clock, for instance, is a plausible example of a

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functional kind. What, then, is the status of broken alarm clocks that fail to go off in the morning?
It seems that they are still alarm clocks, albeit defective ones. Murphy argues that this analysis
supports the weak natural law thesis, but undermines its strong counterpart. An alarm clock that
fails in its function is still an alarm clock; similarly, a law that fails in its function is still a law.
Murphy further argues that the weak natural law thesis holds explanatory priority over the
strong version. The most plausible argument for the natural law thesis proceeds by identifying
the non-defectiveness conditions for law. This yields the following formulation of the weak
natural law view (2013, 43):

(3) Law is necessarily a rational standard, in the sense that anything that is not a rational standard
is either not law or is defective law.

The question then becomes whether certain rational defects undercut law’s function so
fundamentally that the putative law becomes no law at all (Murphy 2013, 59). Murphy’s
own argument could potentially be extended in this way. An unreliable alarm clock is defective,
but an alarm clock that was constructed in such a way as to be incapable of ever performing its
function is plausibly no alarm clock at all. The weak natural law view may therefore pave the
way for a version of the strong thesis.
The above line of argument represents one route to the strong natural law view. It is
questionable, however, whether this strategy shows the explanatory priority of the weak
view over its strong counterpart. It seems that what takes explanatory priority in this
account is the idea of law as a functional kind. A view of law as a functional kind may
yield an argument for the weak natural law view when supplemented with a theory of
the non-defectiveness conditions of such a kind. However, it could also yield an argument
for the strong natural law thesis when supplemented with an account of the existence or success
conditions of the kind. These arguments are not necessarily cumulative. The basis of both argu-
ments is the composition of functional kinds, not the role of non-defectiveness conditions.
Murphy’s strategy is therefore not the only way to proceed.
8. Hybrid Natural Law Theories
I argued in the previous section that someone who affirms the weak natural law thesis based on
an analysis of law as a functional kind might also have reason to affirm a version of the strong
thesis. This would result in a view according to which some rationally defective laws are merely
legally defective, while others are legally invalid. The most prominent contemporary natural
law theorists – Finnis, Murphy and Moore – all avoid this approach, preferring to align them-
selves with either the weak natural law view (Finnis and Murphy) or the strong view (Moore).
However, as we have seen, the functional argument endorsed in different forms by Murphy and
Moore lends itself to a hybrid theory in which the weak and strong theses both play a role.
Alexy’s work provides an example of a hybrid natural law theory of this sort. Alexy argues
that law’s claim to moral correctness means that laws that fail to live up to this claim are legally
defective. However, he distinguishes in this context between rationally defective norms that fall
above and below a threshold of ‘extreme injustice’ (2010b, 177; 2008, 287–8; 2006, 172–3).12
Norms that fall below this threshold are legally defective, while norms that exceed the threshold
are legally invalid. Alexy’s distinction between extremely unjust and less unjust norms is meant
to capture what he calls the ‘dual nature of law’: namely, that law has both a factual dimension,
represented by the need for legal certainty, and a critical dimension, represented by its claim to
correctness (2010b, 176–7; 2006, 172–3; 2007, 52–3). Alexy argues that his hybrid natural law
view strikes the correct balance between the factual and critical dimensions of law.

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Fuller’s theory supplies another example of a hybrid natural law view.13 Fuller’s argument
begins with a purposive definition of law as ‘the enterprise of subjecting human conduct to
the governance of rules’ (1969, 96). Law, then, is a functional concept; laws and legal systems
have a characteristic purpose. Some laws fulfil the purpose better than others; in this sense, there
are good laws and bad laws (1969, 41–4). However, Fuller argues there is a limit to the extent
that a law can fail in its function and still be captured by the concept. He then sets out a series of
procedural yardsticks for law that he calls the internal morality of law. A law that completely
fails to respect one or more components of the internal morality of law is incapable of fulfilling
its function of subjecting human conduct to rules. It falls outside the concept and cannot be
considered legally valid (1969, 38–9). However, norms or systems that are procedurally defec-
tive without exhibiting total failure are merely legally defective (1969, 122, 198–200).
Fuller’s view supplies an example of how a hybrid theory could be founded on a functional
argument for natural law. He begins by identifying law’s characteristic function; laws that are
poorly adapted to this function are then rendered invalid or defective depending on the extent
of their f laws. I offer my own functional argument for a hybrid natural law view in another
article (Crowe 2014c). My suggestion is that the function of law is to serve as a deontic marker
by creating a sense of social obligation. A putative law that is incapable of creating a sense of
obligation cannot perform law’s function. It will be the wrong type of thing to qualify as law.
This applies to standards that are incomprehensible, impose contradictory requirements or are
otherwise impossible to follow. It also covers norms that are so unjust or unreasonable as to be
incapable of engaging human motivations to the extent needed to be generally accepted as binding.
Other laws may be capable of performing law’s function, while nonetheless being poorly
adapted to the role. Laws of this kind are properly regarded as legally defective. This includes
laws that are so badly drafted that they are extremely difficult to follow. It also applies to laws
where the overall balance of reasons favours non-compliance. An unreasonable law, defined
in this way, is not necessarily incapable of creating a general sense of obligation. It is, however,
poorly adapted to do so, since in order to be accepted it must overcome the reasons people have
not to comply with it. It is, in this sense, a defective example of law. Rationally f lawed laws,
then, may be either legally invalid or defective, depending on the extent and nature of the f law.

Acknowledgement
I would like to thank Cicely Bonnin, Constance Youngwon Lee, Rob Mullins and the anonymous
reviewer for their valuable comments and Siân Littledale for her excellent research assistance.

Short Biography

Jonathan Crowe is an Associate Professor in the T. C. Beirne School of Law at the University of
Queensland and the current President of the Australian Society of Legal Philosophy.
Notes

* Correspondence: T. C. Beirne School of Law, University of Queensland, Brisbane 4072, Australia. Email: j.crowe@law.
uq.edu.au

1
This article only discusses natural law views on the nature of law. The term ‘natural law theory’ also picks out
distinctive views in ethics and political philosophy. For an overview of the core themes of contemporary natural
law scholarship in ethics, politics and jurisprudence, see Crowe 2011.

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100 Natural Law Theories
2
For a detailed discussion of different versions of the natural law thesis, see Crowe 2012.
3
For discussion of Fuller’s view, see Crowe 2014b; Crowe 2012, 164–6, 175. For discussion of Alexy’s view, see Crowe
2012, 176–80. For another defence of the strong natural law view, see Soper 2007.
4
For an overview of empirical studies on this topic, see Tyler 2006, 30–9. For further discussion of this aspect of the popular
view, see Murphy 2006b, 6–9; Crowe 2014a, 3–4.
5
Hart also offers an account of the obligation to obey the law in terms of the principle of fair play. However, this only covers
a subset of positive legal rules. See Hart 1955.
6
Another leading legal positivist, Jules Coleman, backs even further away from the popular view. He thinks legal positivists
should embrace the conclusion that no sound theory of law can account for its independent normative weight. See Coleman
1989.
7
See also Plato 1975, bk IV, 715b; Cicero 2009, bk II, pt V.
8
It might be argued that any law that is rationally defective in these ways will necessarily be morally defective, since it is
morally wrong to require someone to do something they lack sufficient reason to do. However, it seems at least possible
that morality and rationality might diverge in these kinds of cases. Imagine a law that is more morally sound than existing
social norms, but fails to gain salience as a matter of social practice. People might then have reason to follow existing
norms, even though the law is morally superior. For further discussion, see Crowe 2007, 786–8; Crowe 2013.
9
I develop my own version of this argument in Crowe 2014c.
10
I argue elsewhere that law’s function is to serve as a deontic marker by creating a sense of social obligation. See Crowe
2014c.
11
The tone of Finnis’s comments on this issue has softened over time. In a later essay, he remarks that the ‘excitement and
hostility aroused by the old saying that unjust laws are not laws is quite needless’, although this comment sits uneasily with his
earlier language. See Finnis 2011b, 30.
12
Alexy takes his lead here from Gustav Radbruch. See Radbruch 2006a, 7; Radbruch 2006b, 13.
13
For further discussion, see Crowe 2014b; Crowe 2012, 164–6, 175.

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