Rules, Policies, and Neutral Principles: The Search for Legitimacy in Common Law and Constitutional Adjudication
![handle is hein.journals/geolr11 and id is 1083 raw text is: RULES, POLICIES, AND NEUTRAL
PRINCIPLES: THE SEARCH FOR
LEGITIMACY IN COMMON LAW AND
CONSTITUTIONAL ADJUDICATION
David A.J. Richards*
T he debate between natural law theory and legal positivism is
as ancient as philosophical thought about law and its funda-
mental moral purposes. In general, the debate centers on the an-
swer to the simple question: Must a law, in order to be a law, be
morally justified? This seemingly simple question has, in fact,
elicited quite complex traditions of thought, often unified by little
else than their positive or negative answer to this question. For
example, natural law theorists answer this question affirmatively,
asserting a strong logical or analytic claim of a connection between
moral and legal concepts, but typically diverge on many other
substantive issues, including widely disparate views regarding the
substantive moral principles to which, in their view, laws are logi-
cally connected. Legal positivists all answer this question nega-
tively, denying any necessary meaningful connection between law
and morals, yet diverge not only in their accounts of the concept of
law but in the basic moral perspective underlying and motivating
their sharp division of legal and moral concepts.'
Our age, like ages past, interprets this controversy in a way
shaped by our legal and political systems. One need only look to the
past to observe that each historical period has interpreted the natu-
ral law-legal positivism debate in the light of its particular concerns.
Thus, the legal positivism of Thomas Hobbes and Jeremy Bentham
was to some degree a reaction to the problem of revolution and
political instability. In their view, natural law theory, exemplified
by Locke's and Rousseau's theory of natural rights, was an impor-
tant intellectual cause of political instability and revolution, en-
couraging anarchic disobedience whenever a person perceived a law
as morally wrong.2 The legal positivism of Bentham and John Aus-
* Associate Professor of Law, New York University School of Law. A.B., Harvard Univer-
sity, 1966; Ph.D., Oxford University, 1970; J.D., Harvard University, 1971.
1 See generally D. RicHARns, THE MORAL CRMlSM OF LAW ch.2 (1977) [hereinafter cited
as MORAL CmrCIsM].
2 See Bentham, Anarchical Fallacies, Being an Examination of the Declaration of Rights
Issued During the French Revolution, in 2 WORKS OF Jm&-sY BaEruTs 488-526 (J. BoTing
ed. 1838-1843).
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Rules, Policies, and Neutral Principles: The Search for Legitimacy in Common Law and Constitutional Adjudication
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