The revival of natural law: Stammler, Radbruch, Fuller, Finnis, Rawls and Nozick

1. Why natural law returned

Three pressures revived it. Positivism and codification had not answered the question of unjust law, and the Nazi regime showed what a formally valid legal order could do. Second, the nineteenth-century faith in progress and in the market produced social conflict that a purely formal law could not settle. Third, international law after 1945 needed a foundation for human rights that did not depend on any one state’s consent: the Universal Declaration of Human Rights (1948) speaks of inherent dignity and inalienable rights in plainly natural-law terms.

2. Natural law with a variable content

• Rudolf Stammler separated the concept of law (a formal, universal idea) from the idea of law (justice). Since the content of just law must change with social conditions, he spoke of natural law with a variable content. Just law is law that treats each person as an end in a community of free-willing men, a Kantian test.
• Josef Kohler and the neo-Hegelians related law to the civilisation of each age.
• François Gény argued that judges must look beyond the code to the “given” realities of social life, including rational and ideal data.
• Gustav Radbruch, a relativist before 1933, wrote after the war that where the conflict between statute and justice reaches an intolerable degree, or where the statute does not even attempt equality, the statute must yield to justice. German courts used this “Radbruch formula” after 1945 and again in the Berlin Wall border-guard cases of the 1990s.

3. Lon L. Fuller: the inner morality of law

Fuller (The Morality of Law, 1964) told the story of King Rex, who fails in eight ways to make law: he makes no rules, keeps them secret, makes them retroactive, writes them unintelligibly, makes them contradictory, demands the impossible, changes them constantly, and decides cases without regard to them. From these failures Fuller drew eight principles of legality:

1. generality (there must be rules);
2. promulgation;
3. non-retroactivity;
4. clarity;
5. non-contradiction;
6. possibility of compliance;
7. constancy through time;
8. congruence between official action and declared rule.

A total failure in any one does not produce a bad legal system; it produces something that is not a legal system at all. Short of that, the principles are an aspiration that law achieves in degrees. Fuller called them the internal morality of law, distinguished from the external morality (the substantive justice of the rules).

Why Fuller is different from the others.

• Procedural, not substantive. Classical theory (Aquinas, Locke) tells you what law must contain. Fuller says almost nothing about content; his principles concern how rules are made and applied.
• Secular and purposive. No appeal to God or fixed human nature. Law is “the enterprise of subjecting human conduct to the governance of rules”, and the principles follow from that purpose.
• A morality of aspiration, not of duty. Beyond the minimum, the principles are ideals to be pursued, not commands.
• Reciprocity. Citizens’ duty to obey rests on the government’s keeping its side: clear, public, prospective rules faithfully applied.
• Still natural law. Fuller himself accepted the label because his test of legal validity is moral, which is what separates him from Hart.

4. The Hart–Fuller debate

Hart’s Holmes Lecture “Positivism and the Separation of Law and Morals” and Fuller’s reply “Positivism and Fidelity to Law” appeared together in the Harvard Law Review in 1958. The focal case was the German grudge informer: a woman denounced her husband under Nazi law for remarks against Hitler; he was sentenced and sent to the front. After the war she was prosecuted for unlawful deprivation of liberty, and a court of appeal upheld the conviction (1949), reasoning, as reported, that the Nazi statute was contrary to the sound conscience of all decent people.

Hart later conceded a minimum content of natural law in The Concept of Law (1961): given human vulnerability, approximate equality, limited altruism, limited resources, and limited understanding and strength of will, any legal system that is to survive must contain basic rules protecting persons, property and promises. This is a fact about survival, not a moral test of validity, and the point should be made precisely.

5. John Finnis

Finnis (Natural Law and Natural Rights, 1980) restated Aquinas without theology. There are seven basic goods self-evidently worth pursuing: life, knowledge, play, aesthetic experience, sociability (friendship), practical reasonableness and religion. Nine requirements of practical reasonableness govern how to pursue them. Law is justified as the means by which a community secures the common good, and Finnis argues that the “unjust law is no law” slogan is a claim about moral authority, not about legal existence. He meets positivism halfway.

6. John Rawls

Rawls (A Theory of Justice, 1971) revived the social-contract method. Imagine persons in an original position behind a veil of ignorance: they do not know their class, talents, sex or conception of the good. They would choose two principles:

1. Equal liberty: each person has an equal right to the most extensive scheme of basic liberties compatible with a similar scheme for all.
2. Social and economic inequalities are permitted only if (a) they are to the greatest benefit of the least advantaged (the difference principle), and (b) attached to offices open to all under fair equality of opportunity.

The first principle has lexical priority over the second; liberty cannot be traded for economic gain. Why is this part of the natural-law revival? Because it treats justice as a standard prior to and independent of positive law, discoverable by reason, which is the natural-law structure, though Rawls himself called his view political rather than metaphysical (Political Liberalism, 1993). He also gave a theory of civil disobedience within a nearly just society.

Indian echoes. The difference principle is close to the logic of Articles 38, 39 and 46 and of substantive equality in reservation cases: unequal treatment is justified when it improves the position of those worst off. The priority of liberty resembles the place of Article 21 and the basic structure, which the State cannot trade away for economic goals; that was the reasoning of Minerva Mills v. Union of India, 1980 INSC 142, on the balance between Parts III and IV.

7. Robert Nozick and the critics of Rawls

Nozick (Anarchy, State, and Utopia, 1974) replied with an entitlement theory. A holding is just if it was acquired justly, transferred justly, or results from rectification of past injustice. Justice is historical, not a pattern of distribution. His Wilt Chamberlain example shows that free transfers will upset any pattern, so maintaining one requires continuous interference with liberty. Only a minimal state, limited to protection against force, theft and fraud and to enforcing contracts, is justified; redistributive taxation is on a par with forced labour.

• Communitarians (Sandel, MacIntyre, Walzer): Rawls’s chooser is an unencumbered self cut off from community.
• Amartya Sen (The Idea of Justice, 2009): theory should compare realisable states (nyaya, justice as realised) rather than design perfect institutions (niti); the capability approach.
• Feminists (Okin): the family is left outside the basic structure.

8. Natural law in Indian constitutional law

The Constitution codifies many natural rights, so Indian courts rarely need to invoke natural law as a ground of invalidity. The question came up starkly in A.D.M. Jabalpur v. S.S. Shukla, 1976 INSC 129: the majority held that during the Emergency no one could move a court to enforce the right to life, because Article 21 was the sole repository of that right. Khanna J., dissenting, held that the right to life and liberty was not the creation of the Constitution and that the rule of law requires that no one be deprived of it without authority of law. In K.S. Puttaswamy v. Union of India, 2017 INSC 801, a nine-judge bench recognised privacy as a fundamental right, described life and personal liberty as inalienable rights inherent in human existence, and expressly overruled the A.D.M. Jabalpur majority. Fuller’s procedural values also appear in Maneka Gandhi v. Union of India, 1978 INSC 16, which requires procedure under Article 21 to be fair, just and reasonable, and in the rule against retroactive criminal law in Article 20(1).

How this is examined

The Fuller question is best answered in three parts: classical natural law in two paragraphs, Fuller’s eight principles, then the five differences listed in section 3 and the Hart–Fuller exchange. For Rawls, set out the original position and the two principles, then explain why it is natural law in method, then Nozick’s reply. A short note on the Radbruch formula or the grudge informer case is also possible.