The use of moral philosophy in 20th century legal theory

In the past twenty years, several Anglo-American legal theorists have used methods and principles borrowed from disciplines other than law in attempts to solve problems in legal theory. The three authors on whom this work focuses--John Finnis, Michael Perry, and Ronald Dworkin--each rely heavily on moral philosophy in formulating their theories. A fully successful theory that sought to bring together moral principles and the law needs both to justify the use of moral principles and to deal with the fact of moral pluralism. Examining these efforts from a broadly pragmatic point of view, I argue that none of these authors succeeds by both tests.; Finnis, who seeks to adapt traditional natural law theory to the present, argues that there are several aspects of human flourishing that are self-evident and a number of requirements of practical reason that, taken together, reveal the demands of natural law. Finnis's argument is weakest in his insistence that these principles are self-evident. Finnis's derivation produces principles of questionable legitimacy in a democratic society.; Perry accepts that the moral pluralism of our society makes it unjust to enforce any single moral view on the whole of society. His theory calls on courts to further moral discourse rather than seek to end it in cases where important moral issues are at stake. But Perry does not adequately explain how courts can continue moral discourse at the same time that they decide cases.; Dworkin argues that judges should use statutes, precedents, and the society's traditions to construct a coherent scheme of principles. Dworkin's theory, however, does not deal effectively with the fact of moral pluralism. Further, his theory emphasizes the activities of judges with little mention of the role of other citizens in formulating the society's principles of political morality.; Legal pragmatism counsels that moral philosophy will not solve problems in legal theory. Those problems must be addressed from within legal practice, but that practice should be defined broadly. Judges should be skeptical of their own abilities to elucidate moral principles and should seek to accommodate traditionally excluded perspectives.