SSRN 3957617

Law and Morality: One Hundred Years of Solitude*
Rafael Domingo, Spruill Family Professor of Law and Religion at Emory University and Álvaro
d’Ors Professor at the University of Navarra. ORCID: 0000-0003-0772-4661. Email:
[email protected]
Abstract: This article provides a sweeping overview of the long-running debate on the relationship between law and
morality, starting with the 1934 publication of Hans Kelsen’s Pure Theory of Law and continuing to the present
(Robert Alexy, John Finnis). Deftly analyzed in this work are the noteworthy arguments of Anglo-Saxon legal
positivists H.L.A. Hart and Joseph Raz, Ronald Dworkin’s harsh critique of positivism, critical contributions to the
debate by John Rawls and Jürgen Habermas, and advances in natural law theory put forward by Jacques Maritain,
Michel Villey, John Finnis, and Javier Hervada.
Summary: 1. Introduction; 2. The triumph of Kelsen’s positivism and his German critics: from Radbruch to Alexy;
3. Hart, architect of Anglo-Saxon legal positivism; 4. Dworkin’s criticism of positivism brings a revolution to the
debate; 5. John Rawls and his filter of public reasoning; 6. Habermas and his equivocal distinction between ethics
and morals; 7. The resurgence of naturalism; 8. The school of Grisez and Finnis; 9. Ubi est theologia?; 10.
Conclusion.
Key words: law, morality, natural law, theology, legal positivism, Kelsen, Dworkin, Habermas, Hart, Rawls.
1. Introduction
*
This is an English revised version of my Spanish-language paper “El derecho y la moral: Cien años de soledad,”
published in Scripta Theologica 52, no. 3 (2020): 763–92. I want to thank Ariel Liberman for the translation and
Gary S. Hauk and John Witte Jr. for their interesting suggestions and thoughtful comments.
Electronic copy available at: https://ssrn.com/abstract=3957617

The debate about the (ever-complex) relations between morality and law has been intense,
polemical, and illuminating in the past hundred years. It has been argued against the backdrop of,
first, the Second World War and the Nazi Holocaust; then the birth of the United Nations, the
Universal Declaration of Human Rights, the Cold War, and the fall of the Berlin Wall; and, most
recently, globalization and new technologies that have universalized the conversation and made
English the official language of the debate.
This debate has featured well-known intellectuals of the magnitude (in alphabetical order)
of Robert Alexy, John Finnis, Jürgen Habermas, Herbert L. A. Hart, Hans Kelsen, Jacques
Maritain, Gustav Radbruch, John Rawls, Joseph Raz, Robert Spaemann, Charles Taylor, Michel
Villey, and even Pope Benedict XVI, who dedicated a discourse on this subject in Germany’s
Federal Parliament on the occasion of his 2011 apostolic journey to Germany. Among other
things, Ratzinger affirmed the following: “A positivist conception of nature as purely functional,
as the natural sciences consider it to be, is incapable of producing any bridge to ethics and law,
but once again yields only functional answers.”1
As a jurist, I approach this debate from the perspective of the law. This perspective has
had a huge philosophical influence due to its reliance on arguments and doctrines propounded by
great thinkers like Aristotle, Thomas Aquinas, Thomas Hobbes, John Locke, Immanuel Kant,
Jeremy Bentham, John Austin, and Max Weber, as well as contemporary philosophers like
Niklas Lumann, Jürgen Habermas, Robert Spaemann, and Alasdair MacIntyre, among many
others. Despite the importance of Thomas Aquinas’s writings to the natural law theorists the
theology has not played a relevant role. Alberico Gentili’s famous phrase “silete theologi in
1
Benedict XVI, Speech at the German Parliament, Berlin, September 22, 2011,
http://www.vatican.va/content/benedict-xvi/es/speeches/2011/september/documents/hf_ben-
xvi_spe_20110922_reichstag-berlin.html.

munere alieno”2 seems, unfortunately, to continue to resonate in the ears of the positivists as well
as in the not insubstantial number of natural law theorists.
The legal debate has not strictly confronted positivist (the dominant) and natural law
perspectives, though neither has been missing. The strongest critiques of legal positivism have
come not only from the ranks of the natural law theorists (Maritain, Villey, Finnis) but also, and
mostly, from nonpositivist and nonnaturalist intellectuals like Ronald Dworkin. The critiques
from within positivism (for example, that of Hart against Bentham, Austin, and Kelsen, or from
Raz and his teachers Kelsen and Hart) have been so certain that they have influenced the very
meaning of positivism. The natural law doctrines are also divided, especially among Protestant
Christians who have incorporated Christian revelation into the debate (VanDrunen) and those,
especially Catholics, who have resigned themselves to rationalist arguments (Villey, Hervada,
Finnish, George).
Progressively, the positivist thinkers have been internally divided in their conceptions of
the relationship between law and morality, and have lost interest in naturalism, possibly because,
in the rigors of the debate, it has become fairly clear that it is impossible to separate morality and
law in the way the most radical positivists have done in the past and the way legalists continue to
do today. The elaboration and application of these norms, just as in the resolution of concrete
issues, needs to refer constantly, either implicitly and explicitly, to moral principles.
John Gardner (1965–2019), professor at Oxford until his death, qualified the strict
positivist separation between law and morality as a half-myth.3 And he is right. It should not
2
Alberico Gentili, De iure belli libri tres 1.12.92, The Classics of International Law (New York: Oceana
Publications, 1964), 57.
3
John Gardner, “Legal Positivism: 5½ Myths,” The American Journal of Jurisprudence 46, no. 1 (2001): 199–227,
reprinted in John Gardner, Law as a Leap of Faith: Essays on Law in General (Oxford: Oxford University Press,
2012), 19–53.

surprise the reader that, on occasion, it is the very same positivists who defend positions that
have, for centuries, been considered natural law doctrines, and vice versa; therefore, at its core,
the strict categorization of positivist and natural law intellectuals, although useful at first glance,
is fallacious. Thomas Aquinas, for example—the greatest natural law advocate of all time—was
a great defender of legal positivism.4 H. L. A. Hart, the greatest Anglo-Saxon positivist,
acknowledged a minimal content of natural law.5 On occasion, the positivists are attacked for not
giving sufficient consideration to the subject of morality, which is not always true. On other
occasions, the natural law theorists are attacked for having forgotten legal positivism, which is
almost never true.
2. Kelsen’s Positivism and His German Critics: From Radbruch to Alexy
Our debate begins in 1934, when the Czech-born Austrian jurist Hans Kelsen (1881–1973),
while serving as a professor in Geneva, published in Vienna his “pure” theory of law—in
German, Reine Rechtslehre. A second edition, greatly enlarging his influential theory, was
published in 1960, when Kelsen was a professor at the University of California at Berkeley. The
English translation was not available until 1967.6
Influenced by neo-Kantianism, from which he took the [idea] of “validity,” as well as by
the positivism of Bentham and Austin, Kelsen proposed to develop a theory of law serviceable in
any time or territory with the goal of elevating the legal discipline to the category of a normative
4
Thomas Aquinas, Summa Theologiae, II–II q. 57 a. 1.
5
H. L. A. Hart, The Concept of Law, 3rd ed. (Oxford: Oxford University Press, 2012), 193–99.
6
Hans Kelsen, Reine Rechtslehre. Einleitung in die rechtswissenschaftliche Problematik (Leipzig: F. Deuticke,
1934; 2nd ed., 1960). The second edition was translated to English by Max Knight: Hans Kelsen, The Pure Theory
of Law (Berkeley: University of California Press, 1967). In the second edition, Kelsen expounded on more
sociological and voluntaristic positions so that the influence of North American law can be seen.

independent science with its own method and object. For that, the law needed to be
methodologically purified from moral, economic, sociological, or political contaminants.
This purist methodology demanded, among other things, a strict separation between law
and morality, following the most classical positivist model, but also defining the line of
separation between facts and the law (here, Kelsen deviates from classical positivism). Just as the
law, unlike fact, is occupied with what ought to be (sollen) and not what is (sein), his legal
theory must have been essentially normativist; that is to say, it served to determine the criteria to
corroborate the validity and coherence of the norms.
The legal order—which Kelsen identifies as the same state—is conceived as an aggregate
of coercive norms of similar character organized hierarchically according to a pyramid structure.
At the foundation, one finds the Grundnorm or basic norm, of a hypothetical nature, which gives
validity to all rules. In this way, the binding nature of legal norms does not require an external
force from the legal order, whether God or the personification of nature, the state, or the nation.
For Kelsen, the legal order, at its core, has only procedural qualities of validity; it is more
of an instrument than an end. For this reason, the norms can support any sort of content, since the
content is not strictly legal. One might say that, according to Kelsen, the law studies how to
make bottles (norms), not their contents (wine, beer, or water), which are later introduced to
them through morality, economics, psychology, politics. To make a pure theory of law, it is
essential to separate the moral element (the contents) from the legal element (the container).
What is understood as justice in every time and country, just like the call of natural morality,
would be much more a part of the container than the normative content, which has more to do with
ideology than with the law. This content, as such, has no interest in a pure theory of law that is at
base is formalist and normativist. A valid legal norm (bottle) will not stop being legal because of

the immorality of its content (poison); thus, law and morality constitute independent normative
systems.
In summary, Kelsen discards all ethical and political value judgments to strictly center
himself in the frame of legal positivism. As a consequence, Kelsen criticizes the natural law
doctrines as antiscientific.7
The German philosopher of law and politics Gustav Radbruch (1878–1949) reacted
vigorously against Kelsen’s theory. Radbruch defended the view that Nazi law was mere
coercive force, not law in a proper sense, because it lacked moral substance and was obviously
unjust. In Radbruch’s view, the law encapsulates ethical values and ideals of justice, and the
fundamental principles of human morality form part of the very concept of law. No promulgation
of positive law, even if it fits the formal criteria of validity of legal order, can be considered
legally valid if it contravenes the basic principles of morality.8 This is Radbruch’s well-known
formulation, still in use today in service of German constitutional jurisprudence.
A contemporary of Radbruch, Leo Strauss (1899–1973), was a German professor who
immigrated to the United States and finished an exceptional career at the University of Chicago.
In his book Natural Right and History (1953),9 Strauss, from non-Thomistic positions, tried to
revive the Greco-Latin tradition, criticized the lack of consistency in positivism, and reclaimed
for legal-political theory the need to approach questions of ontology and the history of
metaphysics.
7
Hans Kelsen, What Is Justice? Justice, Law, and Politics in the Mirror of Science (Clark, N.J.: The Lawbook
Exchange, 2013), 228 and 285ff.
8
Gustav Radbruch, “Gesetzliches Unrecht und übergesetzliches Recht” (1946), in Gustav Radbruch,
Gesamtausgabe, vol. 3, ed. Arthur Kaufmann (Heidelberg: C. E. Müller, 1990), 83 –89.
9
Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953; 2nd ed., 1971).

Inspired by the ideas of Radbruch, Arthur Kaufmann (1923–2001), a professor in
Munich, held that justice belongs to the very essence of law. For this reason, the “unjust law”
constitutes a contradiction of terms. The mere approval and promulgation of a law (Gesetz)
cannot become the ultimate foundation for the establishment of a just law (Recht). Signfiicantly,
these theories of Radbruch and Kaufmann are powerless in the face of distortions of the law.10
Following Radbruch, Robert Alexy (b. 1945), professor emeritus at the University of
Kiel, has offered a sharp critique of Kelsen’s positivism, and has formulated a nonpositivist
theory of law. Alexy has propounded three theses to articulate the relationship of law and
morality: 1) all legal order contains principles (the incorporative thesis); 2) the law must be
related to a common morality (the moral thesis); and 3) the law must be related to a just morality
(the corrective thesis). Just as the law coerces the behavior of individuals and provides them with
decisive reason for action, the correction that the law affirms also has to be moral.11
3. Hart, Architect of Anglo-Saxon Legal Positivism
The Oxford professor Herbert L. A. Hart (1907–92) has been acclaimed as the greatest English
legal philosopher since Jeremy Bentham. A writer of exquisite style and a man of great
intelligence, Hart accepted part of Kelsen’s “pure” theory, critically refined it, perfected it, and
adapted it to the scope of Anglo-American law.12 Kelsen, despite having lived more than thirty
10
On Kaufmann, see Ulfrid Neumann, “Arthur Kaufmann (1923–2001),” in Rafael Domingo, ed., Juristas
universals, vol. 4 (Madrid: Marcial Pons, 2004). For an overview, please see Arthur Kaufmann, Rechtsphilosophie
(Munich: Beck Verlag, 1994; 2nd ed., 1997).
11
See, above all, Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism, trans. Stanley Paulson
and Bonnie Litschewski Paulson (Oxford: Oxford University Press, 2002). The original text was published in 1992:
Robert Alexy, Begriff und Geltung des Rechts (Freiburg im Breisgau: Verlag Karl Alber, 1992).
12
See the famous debate between Hart and Kelsen, in November 1961 in California, found in H. L. A. Hart, “Kelsen
Visited,” Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983), 86–308. Another of
Hart’s criticisms of Kelsen is found in Hart, “Kelsen’s Doctrine of the Unity of Law,” Essays in Jurisprudence and
Philosophy, 309–42.

years in the United States, never gained the influence in that country that he had in Europe, Latin
America, and Japan.13
As for the debate over the relationship between morality and law, Hart’s original position
is similar to that of Kelsen (strict conceptual separation between law and morality), but there are
many important nuanced distinctions, as both Kelsen and Hart evolved intellectually on this
matter.
In April 1957, Hart offered a lecture at Harvard University titled “Positivism and the
Separation of Law and Morality.”14 There, Hart positioned himself in favor of the separationist
thesis that had been defended in the United States, with somewhat picturesque tints, by Harvard
professor and Supreme Court Justice Oliver Wendell Holmes Jr. (1841–1935). Holmes continues
even today to be considered one of the most-cited jurists in Anglo-American law.15
A few months after Hart’s lecture, the Harvard Law Review published, along with a note
from Hart, a thorough criticism by Harvard professor Lon Fuller (1902–78),16 initiating what has
come to be known as the Hart-Fuller debate, one of the most important for North American
jurisprudence in the last century.17 Hart advocated the absence of a necessary connection (though
never denied the contingency) between morality and the law, while Fuller held that legal orders
have their own internal morality, of a fundamental procedural character.
13
Kelsen, a lover of precision, wrote his “pure” theory of law in German until it was completed in 1960.
Underlying this decision was a semantic reason: the word law in English has a much more extensive meaning than
Gestetz in German or lex in Latin or ley in Spanish, just as the word right in English has a more limited meaning
than Recht in German or ius in Latin or derecho in Spanish. In the field of legal theory, every translation is, in some
way, a betrayal.
14
H. L. A. Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review 71 (1958): 593–629,
reproduced Hart, Essays in Jurisprudence and Philosophy, 49–87.
15
See Holmes’s famous “lecture”, Oliver Wendell Holmes, “The Path of Law,” Harvard Law Review 10 (1897):
457–78.
16
Lon L. Fuller, “Positivism and Fidelity to Law: A Reply to Professor Hart,” Harvard Law Review 71 (1958): 630–
72.
17
On this debate and its real policy implications, see Peter Cane, ed., The Hart-Fuller Debate in the Twenty-First
Century (Oxford: Hart Publishing, 2010).

Three years later, in 1961, after meticulous preparation, Hart published his masterpiece,
The Concept of Law, where he presented his vision of law from a positivist perspective, refining
Bentham’s, Austin’s, and Kelsen’s thoughts. His focus is the object of analytical jurisprudence
and that of what he calls a descriptive sociology, which perceives the birth of law as arising from
a set type of social facts that establish criteria of validity.18
Hart affirmed that legal order as such is a system of rules. These can be primary or
secondary. Those that are primary impose obligations and requirements, while those that are
secondary enable creation of new primary rules or modification or extinguishing of existing
primary rules. The rule of recognition is a secondary rule that all others depend on. It is the
ultimate referential rule, the validity of which is that it has been socially accepted as such. The
parallelism with Kelsen is evident. With this construction, morality does not affect in any way
the validity of the law; in other words, conformity with other standards of morality is not a
necessary condition for the existence of legal order.
In The Concept of Law, Hart discusses his separationist approach to law and morality. In
chapter 9 he says, “Here we shall take Legal Positivism to mean the simple contention that it is
in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though
in fact they have often done so.”19
For Hart, undoubtedly, there are quite a few connections between morality and law - the
sole social purpose of both is one of them - but moral principles are not necessarily a source of
law, although they could become so if they were formally clothed as a norm. But also the other
way around: morally unjust provisions could be legally valid if they are normatively enforced.
18
H. L. A. Hart, The Concept of Law, 3rd ed. (Oxford: Oxford University Press, 2012).
19
Ibid., 185–86.

Hart comes to accept a "minimum content of natural law", to ensure the purpose of survival in
the various modes of association of human beings.20
Again, Lon Fuller criticized Hart’s position. In 1964, Fuller published his famous book
The Morality of Law, which he revised in 1969 to include responses to his critics, Hart among
them.21 Inspired by Gustav Radbruch, Fuller rejected, forcefully, the positivist perspective and
affirmed that the validity of law requires moral control. These moral requirements are contained
in eight formal principles of legality that he calls “the internal morality of law,” and which
constitute a kind of test of morality. According to Fuller, a legal system can be considered as
such only if the law is: a) general, b) public, c) prospective, d) intelligible, e) coherent or
noncontradictory, f) practicable, g) stable, and h) congruent. Hart defended Fuller’s critics,
alleging that what he was calling morality could not be considered as such.22
4. Dworkin’s Critique of Positivism Turns the Debate Around
Ronald Dworkin (1931–2013), Hart’s successor on the Oxford faculty, per his express desire,
and subsequently professor at New York University (NYU) and University College London,
offered the first overwhelming criticism of Hart’s positivism in an article titled “The Model of
Rules,” published in the law journal of the University of Chicago.23
With this article, a dynamic debate was initiated between both philosophies of law that
had as great an impact in the Anglo-Saxon world as in the scope of continental law.24 In
20
Hart, The Concept of Law, 193–99.
21
Lon L. Fuller, “Reply to Critics,” in The Morality of Law (New Haven: Yale University Press, 1964; 2nd ed.,
1969), 198–244.
22
Hart’s criticism of Fuller’s book The Morality of Law can also be seen in Hart’s review of the book in Harvard
Law Review 78 (1964–65): 1281–95, reproduced in Hart, Essays in Jurisprudence and Philosophy, 343–64.
23
Ronald Dworkin, “The Model of Rules,” University of Chicago Law Review 35 (1967–68): 14–46, reproduced in
Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977), 14–45.
24
On this debate, see Scott Shapiro, “The Hart-Dworkin Debate: Law, Morality, and the Guidance of Conduct,”
Legal Theory 6 (2000): 127–70.
10

Dworkin’s well-known work Taking Rights Seriously (1977),25 which reproduces, among others,
Hart’s review of The Model of Rules, Dworkin affirms that the positivists do not offer an
adequate explanation of what the law is or what happens in practice when it is applied by judges
and courts. But Dworkin does not limit himself to criticizing Hart’s theory; he also offers an
alternative from the perspective of the rights and principles that he will continue to develop in
later works like A Matter of Principle (1985), his best-known book, Law’s Empire (1986), and
his final analytical volume, Justice for Hedgehogs.26
According to Dworkin, Hart, in his theory of rules, forgets those principles that are
necessary to resolve certain cases that Dworkin categorizes as difficult (hard cases), which
undoubtedly have a moral component. With numerous examples from North American
jurisprudence, Dworkin refers to important cases resolved by courts that affect the U.S.
Constitution and those in which the courts have considered discernible moral principles in the
process of deliberation and decision. For Dworkin, there does not exist a neutral moral process of
validating legal norms because the law itself is a complex lattice of principles and legal rules and
morals.
Dworkin criticized and rejected any positivist pyramidal structure of law, whether it was
founded in the power of a sovereign, as Austin argued, in the fundamental norms argued by
Kelsen, or in Hart’s rule of recognition. For Dworkin, all law is based not in formal rules but in
moral principles, such that law and morality cannot be considered totally independent systems. If
25
See the appendix to Dworkin, Taking Rights Seriously, which contains “A Reply to Critics,” 291–368.
26
Ronald Dworkin, A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985); Ronald Dworkin,
Law’s Empire (Cambridge, Mass.: Belknap Press of Harvard Universality Press, 1986); and Ronald Dworkin,
Justice for Hedgehogs (Cambridge, Mass.: Belknap Press of Harvard Universality Press, 2011). In chapter 19 of
Justice for Hedgehogs, Dworkin offer his ultimate analysis of the relations between law and morality.
11

there are valid judicial standards, it is because they are morally valid. For Dworkin, the law is a
branch of a grand tree of morality.27
Legality is determined not only by social practice or from social facts, but also from
morality. According to Dworkin, this relationship between morality and law is precisely what
permits courts to resolve legal conflict when they encounter a legal loophole. Therefore, it is not
necessary to appeal to pure discretion, as positivists contend, but to principles that undoubtedly
have a moral component. As Dworkin himself explains: “law includes not only the specific rules
enacted in accordance with the community’s accepted practices but also the principles that
provide the best moral justification for those enacted rules.”28
Dworkin joined in Fuller’s criticism of Hart and recognized, with the natural law
theorists, that every legal tradition contains principles of justice that are essential ingredients in
the law. For Dworkin, therefore, the moral dimension of law was substantive, and the principles
of justice and equity, with inexorable moral content, were precisely the way weight was given to
the law.
In his moral and political theory of law, the principles of equal concern and respect had
important moral implications.29 Equal concern means that every citizen merits the same
consideration and interest from public powers as others. Equal respect signifies that public
powers must respect individual dignity and permit everyone to decide for themselves what it
means to live a good life. Based on this principle, Dworkin affirms the existence of a right to
moral independence that limits the reach of public powers in matters that he calls foundational
27
Dworkin, Justice for Hedgehogs, 171, 400–14.
28
Ibid., 402.
29
Dworkin, Taking Rights Seriously, 180–83, 272–78.
12

ethical matters,30 with the goal of protecting the responsibility of people to find value in their
own lives.31
According to Dworkin, governments cannot dictate any ethical convictions of “what is
good” to citizens in foundational matters; instead, they must respect equally any form or style of
living. According to Dworkin, this right justifies, for example, public power abstaining from
penalizing pornography,32 abortion, or euthanasia, in spite of the damage that even Dworkin
acknowledges these cause to the public interest.33 These fundamental principles demand a space
for individual liberty that is more protected than the essence of other rights. At the same time, the
principle of equal attention and respect excludes laws concerning public morality, considering
them unjust for citizens who do not share those same moral ideologies.
According to Dworkin, this right to moral independence protects all intimate personal
matters (for example, reproduction, marriage, sexual orientation, sex changes, assisted suicide),
as well as religious liberty, ethical beliefs, politics, and morals.34 The list of foundational ethical
matters protected by this right, according to Dworkin, is open to additions35 in the event that new
questions that affect convictions that define the personality are identified, through which one
creates value in one’s life.36 The public powers can limit this right only when necessary to
protect life, security, or the liberty of others.37
30
Dworkin, Justice for Hedgehogs, 368. It seems that Dworkin does not consider this decision is, in itself, a moral
imposition of the government on the citizens consistent with artificially separating private morality from public.
31
Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate (Princeton: Princeton
University Press, 2006), 66.
32
See Ronald Dworkin, “Do We Have a Right to Pornography?” in Dworkin, A Matter of Principle, 335–72.
33
Ronald, Dworkin, Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom (New
York: Vintage, 1994).
34
Dworkin, Justice for Hedgehogs, 368–69.
35
Ibid., 369.
36
For a criticism of this right, see Rafael Domingo, God and the Secular Legal System (Cambridge: Cambridge
University Press, 2016), 146–48.
37
Dworkin, Justice for Hedgehogs, 369.
13

In 1994, on the publication of the second edition of Hart’s The Concept of Law, Hart’s
editors, Penelope Bulloch and Joseph Raz, included a posthumous writing by Hart responding to
criticisms by Dworkin and other authors, some of which Hart accepts.38 In this writing, Hart
speaks of a soft positivism, which has been called inclusive, and which admits that Hart’s latest
criteria of legal validity explicitly incorporate principles of justice or substantive moral values.39
The progenitors of this soft positivism—including, among others, Jules Coleman, Mathew
Kramer, and Will Waluchow—affirm that moral considerations could become an integral part of
the law if they are implicitly or explicitly considered by the sources themselves.40
In light of this positivism, a more exclusive positivism has risen, led (unabashedly) by
Joseph Raz (b. 1939), Hart’s disciple, a professor at Columbia University and King’s College
London, and teacher of a host of excellent legal philosophers. Raz is credited with one of the best
criticisms of Hart, Kelsen, and Dworkin. Raz argues that the existence and content of law depend
exclusively on social sources. Here, he would settle precisely law’s claim of authority, which
would be left depleted if there were no exclusive reason behind it In this sense, Raz is positioned
between Hart, who denies any pretention of morality in the authority of law, and Dworkin, who
defends the morality of law in everything except mere barbarism.
Raz’s exclusive positivism is made compatible with the argument for a liberalism known
as perfectionist. This liberalism respects the principles of classical political liberalism but,
against Dworkin’s ideals, abandons the necessity of neutrality from public powers against the
diverse conceptions of good.41
38
Hart, The Concept of Law, 238–334.
39
Ibid., 247: “In some systems of law, as in the United States, the ultimate criteria of legal validity might explicitly
incorporate besides pedigree, principles of justice or substantive moral values, and these may form the content of
legal constitutional restraints.”
40
For an overview, see Will J. Waluchow, Inclusive Legal Positivism (Oxford: Oxford University Press, 1994).
41
See Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986); and Joseph Raz, Ethics in Public
Domain: Essays in the Morality of Law and Politics (Oxford: Oxford University Press, 1994).
14

5. John Rawls and His Public Reasoning Filter
At this point in the debate, it is necessary to introduce, if only briefly, John Rawls (1921–2002),
considered by many the most influential American liberal political philosopher of the twentieth
century. In his work A Theory of Justice, published in 1971,42 this Harvard professor and former
student of Hart at Oxford articulates a political and liberal theory of justice as an alternative to
utilitarianism, based on Kantian principles like impartiality, universalization, and respect for
people. He elaborated and completed his theory in Political Liberalism (1993), The Law of
Peoples (1999), and Justice as Fairness: A Restatement (2001).43 This theory has had great
influence on legal arguments about public morality and the practice of law in Western
democracies, as well as in the lives of their citizens.
Beginning with what he terms an “original position,” in which rational individuals
deliberate and elect the most adequate (that is to say, the most just) institutions to distribute
burdens and benefits, Rawls approaches the political problem of justice practically, not
theoretically or epistemologically, but with the pretense of formulating the best public criterion
of justice. For this, he approaches the moral question through public prudential orders
concerning justice that rational citizens agree to share by overlapping consensus on the basic
principles of justice and fundamentals of the constitution.
Rawls proposes a platform of political values accepted by rational citizens in which the
concept of law has priority over the concept of good.44 This legal prioritization permits all
42
John Rawls, A Theory of Justice, rev. ed. (Cambridge, Mass.: The Belknap Press of Harvard University Press,
1999).
43
John Rawls, Political Liberalism (New York: Columbia University Press, 1993; 2nd ed., 2005); John Rawls, The
Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999; 2nd ed., 2001); and John Rawls, Justice as
Fairness: A Restatement (Cambridge, Mass.: Harvard University Press, 2001).
44
Rawls, A Theory of Justice, 28: “In justice as fairness the concept of right is prior to that of the good.”
15

citizens to maintain their own comprehensive doctrines concerning the moral concept of good,
but limits the kinds of moral considerations that count publicly as legitimate reasons in political
deliberations within the frame of accepted principles of justice.
In their deliberations and decisions, citizens must reconcile their particular
preconceptions of the good with shared and accepted principles of justice. In order to reconcile
these, Rawls develops the concept of public reason,45 which acts as a sort of argumentative filter
in public debate and endeavors to reconcile the private life of the citizenry with the standards of
political justice.
For Rawls, it is a requirement of public reasoning that citizens must justify their political
decisions by relying only on publicly available values and standards. Therefore, for example, it
would not be an argument in line with political reasoning to affirm that euthanasia should not be
permitted because of a Christian mandate prohibiting murder; on the other hand, a Christian
could argue that euthanasia undermines the dignity of all people (not only Christians) and
detracts from the value of human life.
Rawls’s public reasoning limits considerably the reasons for promulgating public moral
laws of any sort, since one can easily argue that comprehensive doctrines are being employed, as
has happened de facto in the abortion debate. Public reasoning drastically reduces the
jurisprudence of any field of law that directly or indirectly affects public morality. On the other
hand, public reasoning cuts through natural law positions that can easily be branded as
comprehensive doctrines. Concretely, in Political Liberalism, Rawls criticizes those rationalist
believers who think that their beliefs are open to reason and can be established in line with it.46
45
The best exploration of this idea is found in the second edition of Rawls, The Law of Peoples: With “The Idea of
Public Reason Revisited,” 2nd ed. (Cambridge, Mass.: Harvard University Press, 2001).
46
Rawls, Political Liberalism, 152–53.
16

Rawls’s suggestive approaches dominate the space of political (and legal) philosophy and
have generated their own debate. His sharpest critic came from his own home, Harvard, with the
publication of the book Liberalism and the Limits of Justice (1981) by Michael Sandel.47 A little
later, Scottish philosopher Alasdair MacIntyre joined in the criticism with his book After Virtue
(1984),48 as have Charles Taylor49 and Michael Walzer,50 among others. Rawls himself, and
supporters of liberalism like Ronald Dworkin, Jürgen Habermas, and Will Kymlicka, joined in
this great debate, which certainly merits a separate article, since it transcends the legal sphere.51
6. Habermas and His Equivocal Distinction between Ethics and Morals
Claims similar to those of John Rawls regarding the formulation of a liberal theory acceptable by
citizens with any comprehensive vision of reality were made by philosopher Jürgen Habermas
(b. 1929),52 professor emeritus of the University of Frankfort am Main and one of the most
influential thinkers of our day. Like Rawls, Habermas studied, from the perspective of
philosophy, procedural theories that satisfied the need to substantiate positive law in democratic
societies. As opposed to Rawls, however, Habermas did this from the institutionalization of
procedures of distinct rational discourses.53
47
Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1981).
48
Alasdair MacIntyre, After Virtue: A Study in Moral Theory (Notre Dame, Ind.: Notre Dame University Press,
1984).
49
Charles Taylor, Sources of the Self: The Making of the Modern Identity (Cambridge, Mass.: Harvard University
Press, 1989).
50
Michael Walzer, Spheres of Justice; A Defense of Pluralism and Equality (Oxford: Basil Blackwell, 1983);
Michael Walzer, Interpretation and Social Criticism (Cambridge, Mass.: Harvard University Press, 1987).
51
On this debate, see Stephen Mullhall and Adam Switt, Liberals and Communitarians, 2nd ed. (Malden, Mass.:
Blackwell Publishing, 2007).
52
For an overview, see Amy Allen and Eduardo Mendieta, The Cambridge Habermas Dictionary (Cambridge:
Cambridge University Press, 2019).
53
For the parallels, see Todd Hedrick, Rawls and Habermas: Reason, Pluralism, and the Claims of Political
Philosophy (Stanford, Calif.: Stanford University Press, 2010).
17

Habermas’s fundamental work for understanding his multidisciplinary approach to law is
Facticity and Validity (in German: Faktizität und Geltung), published in 1992.54 A few years
earlier, in 1986, he referred specifically to the relationship between morality and law in the
Tanner Lectures given at Harvard.55
Habermas asserts that the principal tension in law is found between facticity and validity.
Facticity implies that the law is a coercive, positivist system whose sanctions impose obedience
even for those who do not share in the normativity of the legal system.56 Validity implies
legitimacy, that is, the quality of the law as morally dignified, respected, and obeyed.57
Legitimacy is a necessary condition for the validity of the law. And it is precisely here that the
law is connected to morality, as all legitimate law carries an implicitly complementary not
hierarchical, relationship with morality.58
Although both morality and the law are governed by discursive principles, the context of
discourse differs between them. The moral discourse is universal and deals only with
universalizable interests, while the law is inserted in a specific state and social framework
determined by the political community. This difference explains why legal norms are not only
translated moral interests but also ethical and pragmatic. This distinction between moral and
ethical is the key to understanding Habermas.
Moral discourse is different from ethical discourse, as the latter is not universal but refers
to individual values or those of the community. “Ethics” has to do with what we consider
54
Jürgen Habermas, Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen
Rechtsstaats (Frankfurt am Main: Suhrkamp, 1992); in English, Jürgen Habermas, Between Facts and Norms:
Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, Mass.: MIT Press,
1996), especially 104–17.
55
Jürgen Habermas, Law and Morality, The Tanner Lectures on Human Values, delivered at Harvard University,
Oct. 1–2, 1986, at https://tannerlectures.utah.edu/_documents/a-to-z/h/habermas88.pdf.
56
Habermas, Between Facts and Norms, 47–48.
57
Ibid., 47-48.
58
Ibid., 106.
18

ourselves to be, or what we think is the best for us based on what we want to become. “Morals,”
on the other hand, refers to the demand to respect and protect what corresponds with the interests
of everyone.59 In the legal sphere, moral discourse, being universal and shared, demands strict
tests of generalization, implying that all citizens must accept its consequences (for example,
basic procedural principles like not convicting without sufficient proof); this is not so with
ethics, which only requires a process of collective self-comprehension, of compromise,
tolerance, and strategic action, which overcomes individualism.60
The problem lies in determining which subjects correspond to each discourse. For
example, Habermas affirms that questions about abortion or euthanasia are ethical, not moral,
since their evaluation pertains to community religious ethics, which should not be accepted
universally; therefore, what is demanded is tolerance.61 Tolerance is the price that every citizen
must pay to live in a democratic community based on equality and formed for citizens with
distinct ethical convictions.
The lack of solid distinction between ethics and morality has been criticized for being
contrary to the principle of moral unity and the unity of the human person as an individual and
social being. Sound criticisms along these lines have been advanced by various thinkers,
including John Finnis and Robert P. George.62
7. The Resurgence of Natural Law
59
Jürgen Habermas, Justification and Application, trans. Ciaran Cronin (Cambridge, Mass.: MIT Press 1996), 1–17.
60
Similarities in the line of thinking between Dworkin and Rawls are obvious.
61
Jürgen Habermas, “Reply to Symposium Participants,” Cardozo Law Review 17 (1996): 1477–557, especially
1489–90.
62
John Finnis, “Natural Law and the Ethics of Discourse,” Ratio Iuris 12 (1999): 354–73.
19

The natural law movement, although it has grown in recent decades, continues to be a minority
in legal sciences.63 With different nuances, natural law theorists have continued to defend the
view that all legal order must aspire to justice, and that this ideal has an inextricable moral
component; that all law demands a rational standard and obligatory moral conduct; and that
morality precedes the law and is independent of the will of human beings and the sovereignty of
peoples.
The natural law theorists have affirmed with new arguments that the law does not always
decide whether something is just or unjust, but rather many times only recognizes it since there
are certain rational principles of justice prior to the law (among them obedience to the law) that
are universal, and that all legal systems must respect. Many natural law theorists, inspired by
Thomas Aquinas, argue that positive law derives in some sense from the natural law, either by
direct derivation (the prohibition against murder), or through what are called determinations,64
that is, the codifications or specifications made by the legislator through free decision-making,
but not devoid of moral content (for example, traffic regulations).
Naturalism has argued that there exists a moral obligation to obey the law. Moreover,
following Saint Augustine and Saint Thomas Aquinas, naturalism has affirmed that positivist law
contrary to natural rights is not law (lex inusta non est lex) but, rather, is the appearance of law,
or the corruption of law (legis corruptio).65 The specific explanation of this famous maxim has
varied from author to author (Finnis and Hervada differ, for example). In every case, however,
this rule does not imply an impairment of positive law but rather upholds its dignity, by giving it
63
For an overview, see Cristóbal Orrego, “Iusnaturalismo contemporáneo,” in Jorge Luis Zabra Zamora and Álvaro
Núñez Vaquero, eds., Enciclopedia de teoría y filosofía del derecho I (Mexico City: Instituto de Investigaciones
Jurídicas, 2015), 37–59. For an overview of naturalism, see Fernando Simón, “Natural Law Theories and
Constitutionalism,” in Max Planck Encyclopedia of Comparative Constitutional Law (Oxford: Oxford University
Press, 2018), online edition.
64
See Thomas Aquinas, Summa Theologiae, I–II, q. 95, a. 2.
65
Saint Augustine, De libero arbitrio, I,5,11; Thomas Aquinas, Summa Theologiae, I–II, q. 95, a. 2
20

an ethical foundation as a requirement for legitimacy. The maxim has been applied, with as
much frequency as with little foundation, by some positivists as a throwing weapon against
natural law theorists.
In the flowering of naturalism in the last hundred years, two French thinkers among
others have been key: Jacques Maritain (1882–1973) and Michel Villey (1914–88). Maritain, a
convert to Catholicism in 1906 and a continuer of the Aristotelian-Thomist tradition, had a
certain prominence in Europe (including the Vatican) and in the United States, where he spent
many years teaching at American universities, especially at Princeton. A personal friend of Pope
Paul VI, Maritain made a great effort to marry the best philosophy of Aquinas with democratic
ideals and human rights, establishing a clear connection between natural law and human rights.
Maritain believed that ethical norms were rooted in human nature. Inspired by Aquinas,66
Maritain affirmed that the natural law is known principally not through philosophical arguments
and demonstrations but through inborn knowledge. It is an operation of the preconscious
intellect, which, because of natural inclination, permits a genuine understanding of reality.67 The
intellect, to make its judgments, consults the subject’s internal inclinations.68 This type of
understanding is the foundation of an understanding of God, of artistic activity, but also of
morality, in so far as it provides the first principles of morality as well as an understanding of
one’s own subjectivity. These moral principles are universal and must inform any positivist
legislation as well as any application of the law. Otherwise, the human being is not respected.
Maritain argues that human rights have their roots in natural law.69
66
Aquinas, Summa Theologiae, II–II, q. 45, a. 2.
67
Jacques Maritain, Natural Law: Reflections on Theory and Practice, ed. William Sweet (South Bend, Ind.: St.
Augustine’s Press, 2001), 23.
68
Jacques Maritain, Man and State (Washington, D.C.: Catholic University of America Press, 1984), 91.
69
Maritain, Man and State, 95–107.
21

Michel Villey is considered the main philosopher of postwar French law. Firmly
anchored in the sources of Roman law and the Thomist tradition (though not in scholasticism),
and with a profound knowledge of the history of legal thought, Villey set out to develop a theory
of an objectively just law, protected and applied by judicial institutions.
The goal of law is to maintain a social order and resolve conflict in a just and objective
way with respect to tangible or intangible goods in which humans are interested. Villey
differentiates the internal dimensions, proper to morality, from the external, proper to law. The
idea of justice is presented in both dimensions; it is intrinsic to the idea of law so that the law is
not reducible to the mere will of the legislator.
According to Villey, the law is a Roman invention, based in the nature of things. Law is
an art of the good and the just (ars boni et aequi),70 where the good and justice intertwine until
they meld. For Villey, the objective meaning of law gave way to subjective rights after Ockham,
and very particularly after Hobbes, whose break with the Aristotelian “science of the just” has
dominated modernity, including contemporary jurisprudence. The objective version of law has
been lost with the emphasis of human rights, which are the maximum expression of the
subjectivity of law.71
Many of Villey’s ideas penetrated the depths of two Spanish professors at the University
of Navarra: a Romanist, Álvaro d’Ors (1915–2004), and a canonist and philosopher of law,
Javier Hervada (1934–2020). Álvaro d’Ors developed a theory of natural law as a limit of
positivist law, based on the premise that natural law is the application to the right of the idea of
70
Celso, in Ulpian, Libro primo institutionum, Digesta 1.1.1pr. in Corpus Iuris Civilis, vol. I, ed. Theodor
Mommsen and Paul Krüger, 16th ed. (Berlín: Weidmann, 1954).
71
Michel Villey, La formation de la pensée juridique moderne, 2nd ed. (París: PUF, 2003).
22

“common sense.”72 Hervada elaborated a solid theory of rights like “the just” based on the
Thomist formulations and the historic investigations of Villey. Hervada placed value on the
centralization of the norms to hand them over to just decision. For Hervada, the norms are valued
in the degree to which they are instruments for deciding law—that is, justice in the concrete
case.73
The division between Catholic and Protestant thinkers in relation to natural law continues
to the present day, but cannot be exaggerated. Especially, the works of Protestant theologian
David VanDrunen have promoted the biblical study of the concept of natural law, inherent in
creation, but also in the covenant of God with his people.74 Reading VanDrunen, one can see the
great continuity of the tradition of natural law and the proximity between Protestant and Catholic
thought in many respects. Recently, moreover, as a consequence of religious dialogue, certain
theories of natural rights have been argued by Jewish and Muslim thinkers.75
8. The Grisez-Finnis School
In the Anglo-American sphere, the school of new natural legal theory has shone with its own
light, led by the French-American philosopher Germain Grisez (1929–2018), the Benedictine
Abbot Joseph M. Boyle (1941–2018), and the Australian legal philosopher John Finnis (b.
72
Álvaro d’Ors, Derecho y sentido común (Madrid: Thomson Civitas, 1995), reviewed by Rafael Domingo, Persona
y Derecho 35 (1996): 293–98.
73
Javier Hervada, Introducción crítica al derecho natural (Pamplona: Ediciones Universidad de Navarra, 1981;
11th ed., 2011); and Javier Hervada, Lecciones propedéuticas de filosofía del derecho (Pamplona: Ediciones
Universidad de Navarra, 1992).
74
David VanDrunen, Divine Covenants and Moral Order: A Biblical Theology of Natural Law (Grand Rapids,
Mich.: William B. Eerdmans, 2014), 255.
75
Anver M. Emon, Matthew Levering, and David Novak, eds., Natural Law: A Jewish, Christian, and Islamic
Trialogue (Oxford: Oxford University Press, 2014).
23

1940).76 Outstanding among the members of this school is Robert P. George (b. 1955), a disciple
of Finnis and professor at Princeton, who has played an important role in defending natural law
doctrines in public forums, especially for Americans.77
This school holds that there exists a shared human nature, and that the first principles of
practical reason, which constitute the most basic precepts of natural law, are evident in and of
themselves, and are thus indemonstrable.78 The school has crafted its own interpretation of
Thomas Aquinas (far from a certain scholasticism, which to them was erroneous), and tries to
identify basic human goods, such as understanding, religion, or friendship, that have an inherent
value for human flourishing. These goods constitute, in their own right, ultimate reasons for
human action, and do not derive from more fundamental principles or values. As such, they
constitute a much higher starting point than Kelsen’s alleged hypothetical base norm. These
basic or intrinsic goods are accessed through practical reason acting on one’s own experiences.
Of the founders of the school, John Finnis has played the larger role in the debate on law
and morality. A disciple of Hart and professor at Oxford and Notre Dame, Finnis has been
recognized by Anglo-Saxon positivist jurists as an important interlocutor in the debate.79 Finnis
has made solid arguments against the positions of Hart, Rawls, Dworkin, and Raz, among
76
For an overview and critique of this school, see Nigel Biggar, ed., The Revival of Natural Law: Philosophical,
Theological, and Ethical Responses to the Finnis-Grisez School (London: Routledge, 2016); and Russell Hittinger,
A Critique of the New Natural Law Theory (Notre Dame, Ind.: University of Notre Dame Press, 1989).
77
See Robert P. George, ed., Natural Law Theory: Contemporary Essays (Oxford: Clarendon Press 1992); Robert P.
George, In Defense of Natural Law (Oxford: Oxford University Press, 1999); and Robert P. George, Entre el
derecho y la moral, trans. Pedro José Izquierdo (Cizur: Thomson Aranzadi, 2009).
78
In this vein, see Thomas Aquinas, Summa Theologiae I–II: q. 94, a. 2.
79
On Finnis, see Robert P. George, “The Achievement of Finnis,” in Reason, Morality, and Law, ed. John Kewon
and Robert P. George (Oxford: Oxford University Press, 2013), 1–9.
24

others.80 Recently he initiated, with Robert Alexy, perhaps the most interesting contemporary
debate on the subject.81
In 1980 Finnis published his masterpiece, Natural Law and Natural Rights,82 in which he
develops his theory that human goods can be secured only through legal institutions, which alone
can satisfy certain requirements of practical reasonableness. Based in the Aristotelian-Thomist
tradition, and strongly influenced by the ideas of Grisez, Finnis offers an elaborate explanation of
natural law after having debated for years with his teacher, Hart, and his colleagues Ronald
Dworkin, Joseph Raz, Jeremy Waldron, and John Gardner. It was in fact Hart himself who
invited Finnis to write a book on natural law and natural rights for the Clarendon Law Series of
Oxford University Press.
Forty years after the publication of this work, Natural Law and Natural Rights continues
to be an important reference for the analysis of the basic ideas upon which naturalism is based.
These ideas include, among others: justice and its requirements, the common political good;
rights and their identification; the rational bases for respect of and obedience to the law and
political authority; and the nature and social function of law.
Finnis’s book is complemented by another on Thomas Aquinas: Aquinas: Moral,
Political, and Legal Theory (1998).83 This meticulous investigation has put Aquinas back at the
center of the debate over legality and morality.
It is interesting to confirm that, with almost eight more centuries of history on the
shoulders of humanity since the age of Aquinas, the current era of globalization and new
80
George, “The Achievement of Finnis,” 1–9.
81
See Robert Alexy, “Some Reflections on the Ideal Dimension of Law and on the Legal Philosophy of John
Finnis,” American Journal of Jurisprudence 58, no. 2 (2013): 97–110; and the reply: John Finnis, “Law as Fact and
as Reason for Action: A Response to Robert Alexy on Law’s Ideal Dimension,” American Journal of Jurisprudence
59, no.1 (2014): 85–109.
82
John Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press 1980; 2nd ed. 2011).
83
John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998).
25

technology keeps us asking ourselves the same old questions and needing to go back again and
again to the same sources as always.
9. Ubi Est Theologia?
The debate between law and morality demands restoring dialogue between legal theorists and
theologians. This dialogue is not in any way artificial but is necessary, since, as Leibniz says, the
similarities between law and theology are astounding.84 Theology shares with law many ideas
and values. Just consider concepts like law, justice, marriage, oath, obedience, authority, power,
tradition, redemption, punishment, intercession, mercy or confession. These concepts have both a
legal and a theological dimension due to the common sources used for elaborating them.
Sometimes it is even difficult to determine historically whether a concept originated in the legal
sphere or that of theology. For example, the word sacramentum was used by the archaic
procedural law of Rome as a forma ritual of conflict resolution and afterwards was applied by
Christian theology to express the efficacious signs of grace, instituted by Jesus Christ and
entrusted to the church to dispense God’s grace to humanity.85
In my opinion, theology can make important contributions to the debate in two ways: a)
recovering for the law the idea of God; and b) establishing the connection between spirituality,
morality, and law.
84
See Gottfried Wilhelm Leibniz, The New Method of Learning and Teaching Jurisprudence, trans. Carmelo
Massimo de Iuliis (Clark, N.J.: Talbot Publishers, 2017), part 2, paragraph 4, p. 33: “The similarity between the two
disciplines is surprising.”
85
Rafael Domingo, “Theology and Jurisprudence: A Good Partnership?,” Journal of Law and Religion 32, no. 1
(2017): 79–85. See more extensively John Witte Jr., The Reformation of Rights: Law, Religion, and Human Rights in
Early Modern Calvinism (Cambridge: Cambridge University Press, 2007), and John Witte, Jr. The Blessings of
Liberty: Human Rights and Religious Freedom in the Western Legal Tradition (Cambridge: Cambridge University
Press, 2021).
26

a) Veluti si Deus daretur. This was the message that Benedict XVI proclaimed to Europe
on various occasions: live in society as if God exists,86 surpassing the modern agnosticism of etsi
Deus non daretur (as if God does not exist). For years, I have defended a theistic conception of
law, which, of course, includes nontheistic views.87 The argument I propose is secular, even
though it has moral and religious implications. Thus, it may pass Rawls’s public-reasoning filter.
Its formulation is as follows: from a legal perspective, nontheism can be fully protected from
theism, but not vice versa.
Absence of X is better understood if X is understood first, and the absence of X is better
protected if X is protected first. Thus, for example, it is easier to understand the absence of
solidarity by first understanding what solidarity means and implies. But solidarity can be
protected only from positions that understand what solidarity means, whereas the absence of
solidarity is meaningless without an understanding of solidarity. A country in solidarity can
perfectly respect and protect attitudes of nonsolidarity, but it is difficult for a country built on the
absence of solidarity to endorse solidarity. The same is true of theism and nontheism.
Nontheism can be understood only from the perspective of theism, and, thus, a theistic
system can protect nontheism. But a nontheistic system with no understanding of theism cannot
protect theism fully. Hence, it is reasonable that the starting point of legal order is theistic, open
to transcendence, rather than nontheistic or atheist. This theistic—not theocratic—orientation of
legal order does not sacrifice, in any way, the democratic principles of liberty and equality, but
rather empowers them. For example, an order that recognizes God promotes equality among
citizens (all are God’s children) and impedes the rulers from pretending to occupy the place
86
Benedict XVI, Western Culture: Today and Tomorrow (San Francisco: Ignatius Press, 2007), esp. chap. 1.
87
Rafael Domingo, “The Metalegal God,” Ecclesiastical Law Journal 16, no. 1 (2014): 147–67; and Domingo, God
and the Secular Legal System.
27

reserved for God. Similarly, an order that recognizes God as the ultimate foundation for morality
better protects the most intimate moral liberty of the person than one that does not so recognize
God, because the theistic order dignifies the value of every human conscience as a divine voice.
This degree of protection of the conscience is not easy to reach from nontheistic conceptions that
deny the transcendent value of conscience as a proximate norm for morality.
b) The connection between spirituality, morality, and law. We can think of each of these
concepts as comprising a triad. Thus, the substance of spirituality can be expressed as the triad of
love, communion, and gift. The essence of morality can be expressed as the triad of the common
good, human action, and human consciousness. And the function of law can be synthesized as
the triad of justice, agreement, and rights.88
The first elements of the three triads (justice, common good, love) are connected to each
other, since every legal order is perfected when it seeks justice, orders the common good, and,
ultimately, aspires to promote love among people. The second elements of the triads (agreement,
human action, and communion) are also related, because agreements and human actions are
expression of human communion. And, of course, the third elements of the triads (rights,
conscience, and gift) are interdependent, because rights must respect the dictations of
conscience, which is a real divine gift: a light that illuminates the soul and indicates the path of
justice and love. The connectivity among these three triads reflects unity of all dimensions of
reality, even if each one requires its own autonomy.
88
See Rafael Domingo, “Why Spirituality Matters for Law: An Explanation,” Oxford Journal of Law and Religion
8, no. 2 (2019): 326–34; and Rafael Domingo, “Toward the Spiritualization of Politics,” Journal of Church and
State 63 (2021), online version.
28

10. Conclusion
The holistic structure of reality and the gradation of knowledge permit us to understand that the
lower dimensions of reality are more basic, but are less relevant than the upper, which provide us
with more qualified information. The hydration of the human body, for example, is more basic
but less relevant than education. A person without water dehydrates; a person without education
may survive. But education serves a purpose greater than hydration. Thus, it is more relevant.
Without education, there is no development.
This distinction between the basic and the relevant illuminates the relations between law
and morality. The law is more basic but less relevant than morality. The law, like water, is a
necessary condition for community, but not a sufficient condition. Morality, however, is more
relevant than law, and thus fulfills a higher purpose. Therefore, the law among morally perfect
people can be reduced to an organizing minimum.
The positivists (Kelsen and Hart) focused on what is basic (the validity of the norm),
methodologically disconnecting it from what is relevant (morality, justice, and the common
good). Natural law theorists (Maritain, Villey, Finnis), however, studied what is relevant and
integrated it into what is basic, thus achieving a superior harmony and capturing more deeply the
sense of the basic. The positivists, in disconnecting conceptually and methodologically the basic
from the relevant (law from morality), fragmented the unity of reality and of the very person
whom the law, in theory, must protect. The positivists have not realized that the basic and the
relevant, though autonomous, are interdependent, not independent.
Rawls wanted to found a democratic society on what is basic (the original position),
leaving each human being to judge what they consider to be relevant (their comprehensive
29

doctrine). The possible error of Rawls lies precisely in his not realizing that one is better able to
identify what is basic from the perspective of what is relevant.
Dworkin’s error is in identifying as basic what is not: the right to ethical independence.
This false identification leads to an intransigent defense of individualism, even at the cost of real
objective damage to society (the famous rights to pornography, abortion, or euthanasia). In
separating ethics from morality, Habermas tries to divide what is relevant, granting ethics the
category of something basic. Alexy is the thinker about the basic who is most served by the
relevant; and Finnis is the thinker about the relevant who most considers the basic.
I conclude by paraphrasing a hidden comment in the famous novel One Hundred Years of
Solitude, by Gabriel García Márquez: “Colonel Aureliano Buendía hardly understood that the
secret of a good law is nothing more than an honest pact with morals.”89 At your orders, my
colonel!
Cited Bibliography
Agustín de Hipona. Obras completas. Vol. 3. Madrid: Biblioteca de Autores Cristianos, 2009.
Alexy, Robert, The Argument from Injustice: A Reply to Legal Positivism. Translated by Stanley
Paulson and Bonnie Litschewski Paulson. Oxford: Oxford University Press, 2002.
Alexy, Robert. Begriff und Geltung des Rechts. Freiburg im Breisgau: Verlag Karl Alber, 1992.
Alexy, Robert. “Some Reflections on the Ideal Dimension of Law and on the Legal Philosophy
of John Finnis.” American Journal of Jurisprudence 58, no. 2 (2013): 97–110.
89
Gabriel García Márquez, One Hundred Years of Solitude (New York: Vintage Español, 1967), 242–43. The
original phrase, in English translation, is: “Colonel Aureliano Buendia could understand only that the secret of good
old age is simply an honorable pact with solitude.”
30

Allen, Amy, and Eduardo Mendieta. The Cambridge Habermas Dictionary. Cambridge:
Cambridge University Press, 2019.
Aquinas, Thomas. Summa Theologiae. Corpus Thomisticum. Edited by Enrique Alarcón.
Pamplona: Universitatis Studiorum Navarrensis, 2000.
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Law and Morality: One Hundred Years of Solitude*

d’Ors Professor at the University of Navarra. ORCID: 0000-0003-0772-4661. Email:

Michel Villey, John Finnis, and Javier Hervada.

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English the official language of the debate.

but once again yields only functional answers.”1

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as in the not insubstantial number of natural law theorists.

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a great defender of legal positivism.4 H. L. A. Hart, the greatest Anglo-Saxon positivist,

almost never true.

2. Kelsen’s Positivism and His German Critics: From Radbruch to Alexy

English translation was not available until 1967.6

Influenced by neo-Kantianism, from which he took the [idea] of “validity,” as well as by

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methodologically purified from moral, economic, sociological, or political contaminants.

corroborate the validity and coherence of the norms.

of coercive norms of similar character organized hierarchically according to a pyramid structure.

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formulation, still in use today in service of German constitutional jurisprudence.

A contemporary of Radbruch, Leo Strauss (1899–1973), was a German professor who

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3. Hart, Architect of Anglo-Saxon Legal Positivism

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America, and Japan.13

even today to be considered one of the most-cited jurists in Anglo-American law.15

have their own internal morality, of a fundamental procedural character.

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a set type of social facts that establish criteria of validity.18

secondary enable creation of new primary rules or modification or extinguishing of existing

necessary condition for the existence of legal order.

in fact they have often done so.”19

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the various modes of association of human beings.20

noncontradictory, f) practicable, g) stable, and h) congruent. Hart defended Fuller’s critics,

4. Dworkin’s Critique of Positivism Turns the Debate Around

Rules,” published in the law journal of the University of Chicago.23

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his final analytical volume, Justice for Hedgehogs.26

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branch of a grand tree of morality.27

provide the best moral justification for those enacted rules.”28

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According to Dworkin, governments cannot dictate any ethical convictions of “what is

protect life, security, or the liberty of others.37

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defends the morality of law in everything except mere barbarism.

diverse conceptions of good.41

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democracies, as well as in the lives of their citizens.

Beginning with what he terms an “original position,” in which rational individuals

principles of justice and fundamentals of the constitution.

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deliberations within the frame of accepted principles of justice.

In their deliberations and decisions, citizens must reconcile their particular

detracts from the value of human life.

comprehensive doctrines. Concretely, in Political Liberalism, Rawls criticizes those rationalist

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6. Habermas and His Equivocal Distinction between Ethics and Morals