¹ Moore, Michael, “Law as a Functional Kind,” in George, Robert, ed., Natural Law Theories (Oxford: Oxford University Press, 1992)Google Scholar, reprinted as chap. 9 of Moore, Michael, Educating Oneself in Public: Critical Essays in Jurisprudence (Oxford: Oxford University Press, 2000).Google Scholar

² My views on the metaethical thesis are presented in Moore, Michael, “Moral Reality,” Wisconsin Law Review 1982, no. 6 (11/12 1982): 1061–156Google Scholar; Moore, Michael, “Moral Reality Revisited,” Michigan Law Review 90, no. 8 (08 1992): 2424–533CrossRefGoogle Scholar; and Moore, Michael, “Good without God,” in George, Robert, ed., Natural Law, Liberalism, and Morality (Oxford: Oxford University Press, 1995).Google Scholar

³ Moore, , “Law as a Functional Kind.”Google Scholar

⁴ These attributes are the concern of Hart, H. L. A., The Concept of Law (Oxford: Clarendon Press, 1961)Google Scholar; and Raz, Joseph, The Concept of a Legal System (Oxford: Clarendon Press, 1970).Google Scholar

⁵ Herbert Hart nicely distinguished this concern about laws from more general concerns about legal systems, in his “Positivism and the Separation of Law and Morality,” Harvard Law Review 71, no. 4 (02 1958): 593–629.Google Scholar

⁶ On Bentham's distaste for the common law, see Simpson, A. W. B., “The Common Law and Legal Theory,” in Simpson, A. W. B., ed., Oxford Essays in Jurisprudence, 2d ser. (Oxford: Oxford University Press, 1973)Google Scholar; and Postema, Gerald, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1984).Google Scholar

⁷ When Michael Detmold urges the unity of law and morality, this is what he seems to have in mind. See Detmold, M. J., The Unity of Law and Morality (London: Routledge and Kegan Paul, 1987).Google Scholar

⁸ On areas of law, see Moore, Michael, “A Theory of Criminal Law Theories,” in Friedmann, Dan, ed., Tel Aviv University Studies in Law, vol. 8 (Tel Aviv, Israel: Tel Aviv University Press, 1990)Google Scholar, revised and reprinted as chap. 1 of Moore, , Placing Blame: A General Theory of the Criminal Law (Oxford: Clarendon Press, 1997).Google Scholar

⁹ Augustine, , De Libero Arbitrio, I.v.11.Google Scholar

¹⁰ Aquinas, Thomas, Summa Theologiae, I–II, q. 90, a. 4Google Scholar, in Pegis, Anton C., Basic Writings of Saint Thomas Aquinas (New York: Random House, 1945), 2:746–47.Google Scholar

¹¹ We can contrast this position with the legal positivism of Austin and Bentham, for whom there were two kinds of obligations: moral obligations and legal obligations. For them, legal obligations were not a kind of moral obligation; legal obligations were simply liability to legal sanctions. This is a very Pickwickian sense of “obligation,” because in no real sense is one obligated by threats of painful consequences. As Hart put it, one may be obliged to yield to such threats without being obligated to yield to them. See Hart, , The Concept of Law.Google Scholar

¹² John Austin argues against a natural law position by using this sort of semantic analysis to analyze the meaning of “law.” Austin, John, The Province of Jurisprudence Determined, ed. Hart, H. L. A. (New York: Noonday Press, 1954).Google Scholar

¹³ See, for example, Dworkin, Ronald, Law's Empire (Cambridge, MA: Harvard University Press, 1986).Google Scholar

¹⁴ This is Hart's method in The Concept of Law.

¹⁵ In contemporary jurisprudence, this approach is most closely associated with Joseph Raz. See particularly Raz, , Practical Reason and Norms (Oxford: Oxford University Press, 1975).Google Scholar

¹⁶ These two roles are worth distinguishing for purposes of argument even if one accepts Heidi Hurd's thesis that the obligation of judge and of citizen correspond with one another. Hurd, Heidi, Moral Combat (Cambridge: Cambridge University Press, 1999).CrossRefGoogle Scholar There are expository advantages served if we separate the roles because in various instances the tugs of intuition are different for the two roles.

¹⁷ See, for example, Hobbes, Thomas, Leviathan (Oxford: Clarendon Press, 1909).Google Scholar

¹⁸ See Aquinas, , Summa TheologiaeGoogle Scholar; and Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980).Google Scholar

¹⁹ See Dworkin, , Law's Empire.Google Scholar

²⁰ See Fuller, Lon, The Morality of Law, 2d ed. (New Haven, CT: Yale University Press, 1969).Google Scholar

²¹ This is the example used in the Hart/Fuller debate. Hart, , “Positivism and the Separation of Law and Morality”Google Scholar; Fuller, Lon, “Positivism and Fidelity to Law — A Reply to Professor Hart,” Harvard Law Review 71, no. 4 (02 1958): 630–72.CrossRefGoogle Scholar

²² See Moore, Michael, “Precedent, Induction, and Ethical Generalization,” in Goldstein, Laurence, ed., Precedent in Law (Oxford: Oxford University Press, 1988).Google Scholar

²³ See Moore, , “A Theory of Criminal Law Theories.”Google Scholar

²⁴ Ruth Gavison suggests this objection. Gavison, Ruth, “Natural Law, Positivism, and the Limits of Jurisprudence: A Modern Round,” Yale Law Journal 91, no. 6 (05 1982): 1266–67.CrossRefGoogle Scholar See also Robinson, Daniel, “Antigone's Defense: A Critical Study of Natural Law Theory: Contemporary Essays,” Review of Metaphysics 45, no. 2 (12 1991): 382.Google Scholar

²⁵ Feinberg, Joel, “The Dilemmas of Judges Who Must Interpret‘Immoral Laws,’” in Feinberg, Joel and Coleman, Jules, eds., Philosophy of Law, 6th ed. (Belmont, CA: Wordsworth/Thomson Learning, 2000), 108–29.Google Scholar

²⁶ Fuller, , The Morality of Law.Google Scholar

²⁷ Hart, H. L. A., “Book Review — The Morality of Law,” Harvard Law Review 78, no. 6 (04 1965): 1281–96.CrossRefGoogle Scholar

²⁸ Grant Gilmore's nice paraphrase of Hart's point. Gilmore, Grant, The Ages of American Law (New Haven, CT: Yale University Press, 1974), 111.Google Scholar

²⁹ Fuller, Lon, “What the Law Schools Can Contribute to the Making of Lawyers,” Journal of Legal Education 1, no. 2 (Winter 1948): 204Google Scholar; Fuller, , The Morality of Law, 152–86, 223–24Google Scholar; Fuller, , “Fidelity to Law,” 636, 643, 661Google Scholar; and Fuller, Lon, “A Reply to Professors Cohen and Dworkin,” Villanova Law Review 10, no. 4 (Summer 1965): 661–66.Google Scholar

³⁰ Finnis, , Natural Law and Natural Rights.Google Scholar

³¹ Ibid., 154–55.

³² Ibid.

³³ Dworkin, , Law's Empire.Google Scholar

³⁴ This is the view of Frank, Jerome, Law and the Modern Mind (New York: Brentano's, 1930).Google Scholar

³⁵ Austin, J. L., “A Plea for Excuses,” Proceedings of the Aristotelian Society 57 (1957): 1–30.CrossRefGoogle Scholar

³⁶ Hart, H. L. A., “The Ascription of Responsibility and Rights,” Proceedings of the Aristotelian Society 49 (1949): 171–94.CrossRefGoogle Scholar

³⁷ Fuller, , “Fidelity to Law.”Google Scholar

³⁸ Aquinas, , Summa Theologiae, I–II, q. 96, a. 6.Google Scholar

³⁹ On Aquinas's side, see Fuller, , “Fidelity to Law”Google Scholar; and Radin, Max, “Statutory Interpretation,” Harvard Law Review 43, no. 6 (04 1930): 863–90.CrossRefGoogle Scholar On the other side, see, e.g., Easterbrook, Frank, “Statute's Domains,” University of Chicago Law Review 50, no. 2 (Spring 1983): 533–52.CrossRefGoogle Scholar

⁴⁰ Fuller, , “Fidelity to Law.”Google Scholar

⁴¹ See, e.g., Easterbrook, , “Statute's Domains.”Google Scholar

⁴² Compare Easterbrook's preaching in “Statute's Domains” with his practice in In re Erickson, 815 F.2d 1090 (7th Cir. 1987).Google Scholar

⁴³ Holmes, Oliver Wendell Jr., quoted in Hand, Learned, The Bill of Rights (Cambridge, MA: Harvard University Press, 1958), 18.Google Scholar

⁴⁴ See, e.g., Raz, Joseph, “Authority and Consent,” Virginia Law Review 67, no. 1 (02 1981): 103–31.CrossRefGoogle Scholar

⁴⁵ For one of many critiques, see Moore, Michael, “The Semantics of Judging,” Southern California Law Review 54, no. 2 (01 1981): 256–70.Google Scholar

⁴⁶ Dworkin stresses this point in his “The Forum of Principle,” New York University Law Review 56, nos. 2–3 (05/06 1981): 469–518Google Scholar, reprinted in A Matter of Principle (Cambridge, MA: Harvard University Press, 1985).Google Scholar See also Moore, , “The Semantics of Judging.”Google Scholar

⁴⁷ See Radin, , “Statutory Interpretation”Google Scholar; Moore, , “The Semantics of Judging”Google Scholar; and Scalia, Antonin, A Matter of Interpretation, ed. Gutmann, Amy (Princeton, NJ: Princeton University Press, 1997), 17.Google Scholar

⁴⁸ Hart made this point against both Fuller, and Dworkin, , Hart, , “Book Review — The Morality of Law”Google Scholar; Hart, , “Comment,” in Gavison, Ruth, ed., Issues in Contemporary Legal Philosophy (Oxford: Oxford University Press, 1987).Google Scholar

⁴⁹ This is one of Dworkin's favorite examples. Dworkin, Compare, “Review of Cover's Justice Accused,” Times Literary Supplement, 12 5, 1975Google Scholar, with Mackie, J. L., “The Third Theory of Law,” Philosophy and Public Affairs 7, no. 1 (Autumn 1977): 3–16Google Scholar; and with Feinberg, Joel, “The Dilemmas of Judges Who Must Interpret ‘Immoral Laws.’”Google Scholar

⁵⁰ This example is Stern, Kenneth's, from his “Either-or or Neither-nor,” in Hook, Sidney, ed., Law and Philosophy (New York: New York University Press, 1963), 249–50.Google Scholar

⁵¹ Kirby v. United States, 74 U.S. (7 Wall.) 482 (1869).Google Scholar

⁵² I defend this view of statutory interpretation at length in Moore, Michael, “A Natural Law Theory of Interpretation,” Southern California Law Review 58, no. 2 (01 1985): 277–398.Google Scholar

⁵³ Aquinas, , Summa Theologiae, I–IIGoogle Scholar, q. 90, a. 1.

⁵⁴ Holmes, Oliver Wendell, “The Path of the Law,” Harvard Law Review 10, no. 8 (03 1897): 457–68.Google Scholar

⁵⁵ See, e.g., Hart, , The Concept of Law.Google Scholar

⁵⁶ This is Raz's term. Raz, Joseph, The Authority of Law (Oxford: Oxford University Press, 1979).Google Scholar

⁵⁷ Ibid.

⁵⁸ This is Hart's view in The Concept of Law.

⁵⁹ I defend the possibility of this kind of external jurisprudence against Dworkin and others in Moore, Michael, “Hart's Concluding Scientific Postscript,” Legal Theory 4, no. 3 (09 1998): 301–27CrossRefGoogle Scholar; and in Moore, , Educating Oneself in PublicGoogle Scholar, chaps. 1,3.

⁶⁰ Marmor, Andrei, Interpretation and Legal Theory (Oxford: Oxford University Press, 1992).Google Scholar

⁶¹ Hart, H. L. A., “American Jurisprudence through English Eyes: The Nightmare and the Noble Dream,” Georgia Law Review 11, no. 5 (09 1977): 969–89Google Scholar, reprinted in Hart, H. L. A., Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983).CrossRefGoogle Scholar

⁶² In Hart's The Concept of Law, judges must regard the rule of recognition as obligatory for a legal system to exist.

⁶³ It is perhaps almost as intuitive that Kirby's legal rights and obligations were the same as those the judge was obligated to discover in his decision. Still, I leave for another day the question of whether the laws of cases necessarily obligate citizens as well as judges. (In this regard, however, see Hurd, Moral Combat.) If they do, this stronger first step of the traditional argument for natural law makes the second step easier, since in comparison to judicial obligations, which express just those values defining a discrete role, citizens' obligations are more easily seen as an expression of all the values there are.

⁶⁴ In the Anglo-American legal system, we have for centuries tempered the desire for finality in legal judgments with a desire to reopen “final” judgments in order to correct serious substantive or procedural errors. At common law, this was accomplished procedurally by the ancient writs of coram nobis and audita querela, and in Equity, by bills in equity seeking injunctions against the enforcement of legal judgments. (See Moore, J. W., Moore's Federal Practice, 3rd ed. [New York: M. Bender, 1999], secs. 60 App. 105–8.)Google Scholar Even under current federal American law, the old view that courts have inherent power to reopen their own judgments survives; Federal Rule of Civil Procedure 60(b) enumerates five traditional grounds for reopening a judgment and then adds a safety-valve provision specifying that a judgment can also be reopened for “any other reason justifying relief from the operation of the judgment.” Under this provision, “[t]he degree of unfairness may properly be considered in determining whether a court is justified in disturbing the finality of a judgment.” Moore, , Moore's Federal PracticeGoogle Scholar, sec. 60 App. 37. As courts recognize, this “catch-all” or safety-valve provision is a “grand reservoir of equitable power to do justice in a particular case.” Compton v. Alton Steamship Co., 608 F.2d 96, 106 (5th Cir. 1979).Google Scholar

Currently, the above-referenced procedures for reopening a judgment are available only to the court that rendered the judgment. However, when the degree of injustice caused by an erroneous judgment is serious enough, a “collateral attack” on that judgment can be launched from a different court. See, e.g., Fay v. Noia, 372 U.S. 391 (1963)Google Scholar, and Townsend v. Sain, 372 U.S. 293 (1963)Google Scholar, where collateral review of state court factual findings was allowed by the U.S. Supreme Court in order to protect constitutional values. In a civil context, see Feinberg, “The Dilemmas of Judges Who Must Interpret ‘Immoral Laws,’” for a discussion of the various techniques used by state court judges in the antebellum North to avoid giving “full faith and credit” to Southern court findings pertaining to escaped slaves.

⁶⁵ Anglo-American law, as formally stated, is different from what I am arguing for in this essay. See, e.g., United States v. United Mine Workers, 330 U.S. 258, 294 (1947)Google Scholar, in which it is stated that “[a]n injunction … must be obeyed … however erroneous the action of the court may be[.]” If our law really means this, it is bad law. I doubt, however, that our law does mean this. To give the proper incentives to most people, it is doubtlessly useful to utter such categorical, exceptionless pronouncements; in actuality, however, courts merely slap on the wrists actors like Martin Luther King when those actors violate judicial orders (subsequently determined to be erroneous for very good reasons.)

⁶⁶ Union Pacific Ry. v. Cappier, 72 Pac. 281 (Kansas 1903).Google Scholar

⁶⁷ Dworkin, Ronald, “The Model of Rules,” University of Chicago Law Review 35, no. 1 (Autumn 1967): 14–54.CrossRefGoogle Scholar

⁶⁸ Dworkin, Ronald, “Hard Cases,” Harvard Law Review 88, no. 6 (04 1975): 1057–109.CrossRefGoogle Scholar

⁶⁹ Moore, Michael, “Legal Principles Revisited,” Iowa Law Review 82, no. 3 (03 1997): 867–91Google Scholar, reprinted as chap. 7 of Moore, , Educating Oneself in Public.Google Scholar

⁷⁰ Ibid., 873 n. 40.

⁷¹ Ibid., 875–76.

⁷² This is Hans Kelsen's view. See Kelsen, Hans, “The Pure Theory of Law,” Law Quarterly Review 51, no. 203 (07 1935): 528.Google Scholar “There is no such thing, of course, as a genuine gap, in the sense that a legal dispute could not be decided according to the valid norms, owing to the omission of a provision directed to the concrete case.… The law says not only that a person is obligated to a certain behavior … but also that a person is free to do or not to do what he is not obligated to do.”

⁷³ Keeton, W. Page, Prosser and Keeton on Torts, 5th ed. (St. Paul, MN: West Publishing Co., 1984), 56–57.Google Scholar

⁷⁴ Austin, , “A Plea for Excuses.”Google Scholar

⁷⁵ A good example of such deep positivism can be found in Sartorius, Rolph, Individual Conduct and Social Norms (Encino, CA: Dickenson Publishing, 1975).Google Scholar

⁷⁶ See Moore, , Placing Blame, 14–18.Google Scholar

⁷⁷ See generally Moore, , “Precedent.”Google Scholar

⁷⁸ Ibid.

⁷⁹ Ibid. See also Moore, , “Legal Principles Revisited,”Google Scholar discussing Dworkin's commitment to seeing equality (rather than integrity) as the function of the common law.

⁸⁰ Dimock, Susan, “The Natural Law Theory of St. Thomas Aquinas,”Google Scholar in Feinberg, and Coleman, , eds., Philosophy of Law, 31.Google Scholar