Critical Reflection on Evil as an Argument Against God’s Existence

The Logical Problem of Evil attempts to show that the existence of evil in the world is contradictory with the existence of an omnipotent, omniscient and omnibenevolent God. If the Logical Problem of Evil is sound, it implies it is irrational to believe in the existence of an omnipotent, omniscient and omnibenevolent God because of the existence of evil. In “Soul-Making Theodicy,” John Hick argues the existence of evil in the world is not contradictory to the existence of an omni-being God because the evil in the world is required for human spiritual evolution. Therefore, Hick argues, it is rational for one to believe in God as an omni-being. To respond to Hick, I would like to present “The Evidential Argument from Evil,” by William Rowe. Rowe argues, it may not be contradictory, meaning logically impossible, for God as an omni-being to exist with evil, but it is highly unlikely God as an omni-being exists when there is evidence of unjustified evils. Hick’s argument justifies the existence of evil as being necessary for human spiritual evolution, whereas Rowe’s argument asserts, if there is evidence of unjustified evils, in other words, evils which are unlikely to result in human spiritual evolution, then it would be rational to not believe in God’s existence. Ultimately, I will argue The Logical Problem of Evil fails because, as Hick shows, it is not a contradiction for an omni-being God and evil to exist simultaneously. However, I will argue, just because The Logical Problem of Evil fails to disprove God’s existence, it doesn’t mean, as Rowe’s argument demonstrates, that Hick has proven it is more rational to believe in God. Even though Hick hasn’t proven it is more rational to believe in God, I will argue the theist could still have a response to the Evidential Problem of Evil.


The Logical Problem of Evil starts with supposing God exists as an omni-being and tries to show the supposition is contradictory to the existence of evil (class notes). The Logical Problem of Evil is as follows (class notes):

“(S1)           God exists and is omnipotent, omnibenevolent, and omniscient.

(P2)            An omnipotent being can actualize any logically possible world.

(P3)            An omnibenevolent being would want to bring about the best possible world.

(L4)           This is the best possible world. [S1 + P2 + P3]

(P5)            Evil exists.

(P6)            A world with evil is worse than a world without evil.

(L7)           This is not the best possible world. [P5 + P6]

(C)             Either God doesn’t exist or he is not omnipotent, omnibenevolent, or omniscient.”


The Logical Problem of Evil is a reductio ad absurdum argument, in that it starts with the supposition an omni-being God exists and then proceeds to reduce the argument to an absurdity by showing it is a contradiction for an omni-being God to exist in a world of evil. By showing an omni-being God and evil can’t exist simultaneously, the Logical Problem of Evil implicitly asserts it is irrational to believe in the existence of God.


Hick argues against the Logical Problem of Evil at (P6), by asserting a world with evil is better than a world without evil (class notes). Hick asserts humans have evolved from “a morally, spiritually, and culturally primitive state” “as part of the continuum of animal life, in a universe which functions in accordance with its own laws and whose workings can be investigated and described without reference to a creator” (317; 319). According to Hick, this “epistemic distance” allows humans to be genuinely and autonomously free in relation to God (class notes; 319). Further, Hick argues, a morally perfect human created in a morally perfect or imperfect world would just naturally not sin, through no choice of their own due to their inherent moral perfection (319-320). However, per Hick, a morally imperfect being in a morally imperfect world would have the freedom to choose not to sin (320). Hick argues a morally perfect being who doesn’t sin through no choice of their own is “intrinsically less valuable” than a morally imperfect being who chooses not to sin in a morally imperfect world (320).  Therefore, according to Hick, in order for the most valuable kind of morality to be achieved, morally imperfect humans have to exist in a morally imperfect world at an epistemic distance from God (320).


Morally imperfect humans in a morally imperfect world not only can choose to commit moral evils, but can choose how to respond to moral and natural evils, and can learn and grow from experiencing moral and natural evils. Hick justifies all evil in the world as being necessary for the spiritual evolution of humans (320-321). The spiritual evolution of humans, to become more like God, is the greater good which justifies all evil. For Hick, spiritual evolution, which is the growth of the human being to becoming the most valuable moral and spiritual being, requires humans be autonomous and free in relation to God. If there were evidence showing how evils are justified for this greater good, i.e. for the purpose of becoming more like God, then humans could not be autonomous and free, thus, could not spiritually evolve.


Rowe’s argument can be read as a response to Hick. Rowe establishes the first premise of The Evidential Problem of Evil as “There exists instances of intense suffering which an omnipotent, omniscient being could have prevented without thereby losing some greater good or permitting some evil equally bad or worse” (325). Rowe’s second premise is “An omniscient, wholly good being would prevent the occurrence of any intense suffering it could, unless it could not do so without thereby losing some greater good or permitting some evil equally bad or worse” (325). Therefore, per Rowe, “There does not exist an omnipotent, omniscient, wholly good being” (325). Rowe’s argument is not a reductio ad absurdum, in that it doesn’t start with a supposition and then try to show the supposition is absurd. However, his first premise implies, roughly, the conditional: if (S1), (P2), and (P3), then ~ (P5). I say roughly because his argument, due to the addition of the distinction of unjustified evils, is more like: if (S1), (P2), and (P3), then ~ unjustified (P5). Rowe’s argument also assumes (P6). Therefore, Rowe seems to be arguing against (L4), or by negation for (L7), by asserting this is not the best possible world. Why is this not the best possible world? Rowe doesn’t say definitively this is not the best possible world, instead, he seems to assert given the evidence of unjustified evils, it is not likely this is the best possible world. The best possible world would be one where no unjustified evil exists, and it is unlikely this is true for this world.


Rowe moves outside of The Logical Problem of Evil by asserting it is not contradictory for evil and an omni-being God to exist together. So, Rowe is granting Hick the logical possibility of evil and an omni-being God existing simultaneously. However, Rowe asserts, it just doesn’t seem very likely based on the evidence of unjustified evils. Firstly, Rowe’s argument seeks to establish there is evidence of unjustified evils in the world, evils which do not seem to lead to some greater good. Secondly, Rowe’s argument implicitly argues against Hick’s epistemic distance.


Rowe asserts the first premise of The Evidential Problem of Evil is the premise in dispute between atheists and theists (326). Rowe offers a thought experiment, which serves to implicitly argue against Hick’s epistemic distance. He asks for the reader to consider a situation where a fawn becomes horribly burned in a forest fire and then suffers for days before dying (326). Rowe asserts the fawn’s suffering seems to not be connected to any greater good nor would preventing the fawn from suffering for days before dying seem to permit any equally bad or worse evil (326). Rowe points out what appears to be unjustified evil does not necessarily prove the first premise to be true, as we have no way of actually knowing what the long term effects over time of any event would be (327). However, Rowe states “it is one thing to know or prove that (1) [the first premise] is true and quite another thing to have rational grounds for believing (1) [the first premise] to be true” (327). Rowe’s point is, when considering our “experience and knowledge of the variety and scale of human and animal suffering in our world, the idea that none of this suffering could have been prevented by an omnipotent being without thereby losing a greater good or permitting an evil at least as bad seems an extraordinary absurd idea” (327).


For Rowe, while one cannot prove, absolutely and definitively, there is unjustified evil in the world, it is reasonable to believe unjustified evil does exist in the world based on what we have experienced of the world, and therefore, it is rational to not believe in God. To add to Rowe’s argument, being at an epistemic distance from God in Hick’s sense would mean we would not be able to know or understand the specific reasons for evil, but the evils are justified in that they lead to a greater good. Rowe’s argument seems to acknowledge this could be possible. However, Rowe’s argument seems to assert it just doesn’t seem probable given the enormity and severity of the evil. For Rowe, it seems, the epistemic distance, if there is such a thing, would be too vast in too many instances of evil to be probable justification.


In other words, the Evidential Problem of Evil is a challenge to theists. It challenges theists to provide evidence for theologies, meaning, it is a challenge to theists to provide evidence supporting their explanations of why God allows evil. If a theist cannot provide evidence justifying evil, but the atheist can provide evidence of unjustified evils, then it is more rational to not believe in God. Hick’s theology with the assertion of an epistemic distance between humans and God implicitly asserts there is no direct evidence to justify evil, because as noted earlier, if there were such evidence it would be detrimental to humans being genuinely and autonomously free in relation to God. Therefore, per The Evidential Problem of Evil, it would be more rational to not believe in God.


Essentially, Hick’s argument defeats The Logical Problem of Evil by justifying evil. However, Hick’s argument implies there can be no evidence to justify to humans the evil in the world is for a greater good, because to do so would prohibit the ability of humans to obtain the greater good the evil is meant to lead humans to. Rowe’s argument defeats Hick’s argument by asserting if there is evidence of evils which do not lead to the greater good, in Hick’s case spiritual evolution, then it is unlikely an omni-being God exists. Hick, by nature of his argument, is unable to respond because his argument doesn’t allow for evidence to support the justification of the evil.


The Logical Problem of Evil implicitly asks the theist to justify the evil in the world. One way to justify the evil in the world is with a Soul-Making Theodicy. The atheist response is The Evidential Problem of Evil asking the theist to prove their justification with evidence. The Soul-Making Theodicy, based on epistemic distance, inherently denies much evidence can be provided to prove the theist’s justification. The atheist really has no other need to respond at this point because the evidential existence of evil, despite the defeat of The Logical Problem of Evil, still provides the atheist with rational reasons to not believe in God.


However, the next step for the theist, as eluded to implicitly by Rowe’s use of the “G.E. Moore Shift,” could be to respond by asserting theists don’t require evidence for their justification because their belief in God, based on their experiences and knowledge of the world, is a basic belief (328-329). By doing so, they could turn the argument back on to the atheist by challenging the atheist to provide evidence or proof theists do need evidence further justifying their beliefs as basic beliefs. In other words, if the atheists require evidence, then the atheists would need to provide evidence or proof that evidence is required, which is something different from showing evidence of unjustified evil exists. The atheist has already shown, per Rowe, there is evidence of unjustified evil. However, evidence of unjustified evil, which cannot prove definitively that the evil is not justified for a greater good, doesn’t correlate to evidence against a belief based on experience and knowledge of the world as being a basic belief. If the theists can show it is rational to believe in God based on experiences and knowledge without evidence, then the atheist is challenged to respond by providing evidence or proof that shows the theist cannot have such beliefs. However, the very nature of basic beliefs is that they do not require evidence or proof. Several questions arise at this point: How does an atheist provide evidence or proof a belief has to always be based on evidence or proof? Or, if not all beliefs have to meet the evidential or proof criteria, then why would the belief in God be different from the external world, which was the original argument G.E. Moore responded to using his “shift”? What would be, if there are any, the consequences to the atheist if the atheist demanded such evidence and proof? Would holding such a position be contrary with or weaken other positions the atheist holds, thus making the atheist’s entire belief system incoherent or inconsistent?


In conclusion, The Logical Problem of Evil has been defeated by Hick justifying the evil of the world with his Soul-Making Theodicy. However, Hick’s epistemic distance is challenged by Rowe’s Evidential Problem of Evil. Rowe’s Evidential Problem of Evil, challenging the theist to provide evidence that the evils of the world are justified, cannot be answered by Hick’s theodicy. However, the theist could still respond by asserting their beliefs are based on their experience and knowledge of the world, and as such are basic beliefs which do not require any further evidence. By the theist doing so, they have turned the argument back on to the atheist by challenging the atheist to provide evidence or proof that the theists need to provide evidence that their beliefs, being basic, are rational. Ultimately, one has to question, however, if such a demand could undermine the atheists position in the long run.


Works Cited


Hick, John. “Soul-Making Theodicy.” In Philosophy of Religion, by Michael Peterson,William Hasker, Bruce Reichenbach, David Basinger. 316-322. New York: Oxford University Press, 2010.

Rowe, William. “The Evidential Argument From Evil.” In Philosophy of Religion, by Michael Peterson,William Hasker, Bruce Reichenbach, David Basinger. 324-330. New York: Oxford University Press, 2010.




Richard Posner, “The Economic Approach to Law”

In “The Economic Approach to Law,” Richard Posner asserts his approach rests on a “basic assumption of economics” (151). The basic assumption “is that people are rational maximizers of their satisfactions-all people […] in all of their activities […] that involve choice” (ibid). For this essay I will examine Posner’s view of rational maximizers in relation to the moral concepts of justice, fairness, and altruism. I will then examine what his view of all people as rational maximizers means for the authority of the law.

Posner states the term “rational,” “denotes suiting means to ends, rather than mulling things over, and that much of our knowledge is tacit” (ibid). People are rational maximizers in that they seek to maximize “their individual satisfactions, and in turn, respond to incentives” (Butler, online). Further, “A rational maximizer of personal satisfaction adjusts means to ends in the most efficient way possible,” meaning, promotes exchanges which maximize an end satisfaction for the least costly means possible (ibid). Rational maximizers seek to expend the least amount of their resources in order to acquire the most amount of satisfaction as possible. Rational maximizers would respond to incentives which would affect their behaviors in maximizing their satisfactions. Incentives would work by deterring some types of behaviors or promoting other types of behaviors. Posner notes, satisfaction may include, but is not limited to monetary satisfactions, because, more often than not money is merely a means to the end of non-pecuniary satisfaction (152-53). Posner’s concept of wealth maximization includes the concept of individual rational maximizers who together make up an economic society built upon efficiency and incentives in which the wealth of the entire society is maximized (155-156).

Posner addresses the concept of justice, fairness and altruism in his theory by addressing the issue of rights (156). Under the concept of wealth maximization, all rights, such as freedom from slavery, freedom of religion or freedom from torture, would be given market values for their ability to maximize the wealth of the society as a whole (156-57). Therefore, if a particular right, such as freedom from slavery, was found to be inefficient to an unacceptable extent and was unable to be made more efficient through incentives, then society, in order to maximize its wealth, could reject that right (ibid). Posner asserts such an issue is an objection against wealth maximization, however, he counters it is not clear holding onto the right of freedom from slavery when it is inefficient for society makes society a better place (158). He argues, for example, not only do we imprison criminals, we restrict the freedoms of the mentally ill, children, those serving the in military or serving jury duty, which would seem to make our “political ethics” “hypocritical and incoherent” (ibid).

Regarding fairness and altruism, Posner offers a hypothetical example regarding a limited supply of growth hormone (ibid). In a society ruled by wealth maximization it would seem a wealthy parent wanting it for their average sized child would have more advantage in obtaining the item than a poor parent for their extremely below average sized child, and this would be unfair (ibid). Posner counters, firstly, what the poor person may be willing to pay may be more than what the wealthy person is willing to pay, and secondly, altruists might donate to the poor person’s cause (ibid). Primarily, however, Posner asserts the poor person could very well be better off in a free market society because the demand for the hormone would act as an incentive for the maker to produce more of the product and once production reaches a certain level the price will drop (ibid). Posner asserts it cannot be substantiated that either the poor person or the wealthy person has a right to purchase the item, but what is clear is the maker of the item has a right to do what they wish with it (ibid). What is fair, in this sense, is not dependent upon the consumers seeking the product, but is entirely dependent upon the producer of the product.

Regarding the role law, Posner explains how it seems law has already been operating under a concept of wealth maximization (152). He explains how the legislators and the interest groups (who he presumes act on the behalf of organized groups of citizens) make deals in order to maximize their own wealth (ibid). The judges “dual role” is to “interpret the interest group deals in legislation and provide the basic public service of authoritative dispute resolution” (ibid). Posner asserts “an efficient division of labor between the legislative and judicial branches has the legislative branch concentrate on catering to interest-group demands for wealth distribution and the judicial branch on meeting the broad-based social demand for efficient rules governing safety, property, and transactions” (154). He states “Although there are other possible goals of judicial action besides efficiency and redistribution, many of these (various conceptions of ‘fairness’ and ‘justice’) are labels for wealth maximization, or redistribution in favor of powerful interest groups” (ibid). For Posner, the taxing and redistribution powers of Congress, and the judicial rulings regarding such, seem to have been done in order to maximize the wealth of the society as a whole. What is considered “justice” or “fairness,” is thus whatever maximizes the wealth of society as a whole.


Under Posner’s view justice and fairness seem to take on different meanings. Justice and fairness no longer mean egalitarian notions of opportunity where minorities or the powerless are given special considerations to make up for their disadvantages. Justice and fairness are no longer grounded in individual rights, but instead in the wealth maximization of society as a whole. Therefore, what is just and fair is whatever maximizes the satisfaction for society as a whole, and if a right inefficiently hinders wealth maximization, then it can be done away with. For Posner it seems that rights are luxuries which only rich societies who have attained a superfluous level of wealth maximization can afford. For societies striving to maximize wealth, such rights can be discarded and altruism must act as a force for preserving individual “justice” and “fairness” in the sense of equality of opportunity. What is more, for Posner it seems, such a society is required to maximize wealth, and thus, is required for rights to be established at all. The role of law, it seems for Posner, is to create the environment for the wealth maximization of society. The law would do this by providing incentives for rational maximizers to act in certain ways. Law would be necessary to create the environment where the market can act as efficiently as possible.


However, if what is considered “justice” and “fairness” is a legal system which allows for slavery and inequality, then could such a system really be considered “just” and “fair”? If so, then it seems like the words “justice” and “fairness” lose all meaning, and what is morally right and wrong becomes arbitrary. If what is morally right and wrong becomes arbitrary, then why should anyone accept Posner’s view that wealth maximization is right?


Works Cited


Butler, Brian Edgar. “Law and Economics.” Internet Encyclopedia of Philosophy. January 9, 2011. (accessed November 4, 2012).

Posner, Richard. “The Economic Approach to Law.” In Philosophical Problems in the Law, 5th Ed., by David M. Adams, 151-160. Boston: Wadsworth Cengage Learning, 2013.

H.L.A. Hart vs. Ronald Dworkin Regarding Legislating Morality

For this essay, I will compare and contrast Ronald Dworkin’s and H. L. A. Hart’s theories of law. I will begin by summarizing Hart’s theory, and then I will proceed to a summary of Dworkin’s theory. I will focus specifically on how each philosopher addresses the place of morality in the legal system. Next, I will compare and contrast some main points which resonate throughout the theories. Some main points I would like to compare and contrast are: (1) the role of society in the place of morality in law, and (2) the role of the judge in the place of morality in law, and (3) the justification and validation of the legal enforcement of morality.

In “Law, Liberty, and Morality,” Hart distinguishes between the use of the moderate or the extreme thesis to justify morality in law. The moderate thesis asserts “a shared morality is the cement of society; without it there would be aggregates of individuals but no society” (266). The moderate thesis asserts a shared morality has instrumental value in binding a society together and any action which goes against the shared morality, even if it is done privately so that it doesn’t directly harm anyone, is still contrary to the shared morality so it threatens the existence of society (266-267). The moderate thesis requires empirical evidence showing harm is done to society in order to validate the legal enforcement of a particular act of immorality; the act can’t be simply claimed to be harmful (267). The extreme thesis asserts “the enforcement of morality is regarded as a thing of value, even if immoral acts harm no one directly, or indirectly by weakening the moral cement of society” (266). The extreme thesis asserts morality has intrinsic value and should be upheld simply because it is moral.

Hart asserts “It is of course clear (and one of the oldest insights of political theory) that society could not exist without a morality which mirrored and supplemented the law’s proscription of conduct injurious to others” (267). He asserts the proposition that “some shared morality is essential to the existence of any society” is an “acceptable proposition” (ibid). Such a proposition could be accepted as a necessary truth, meaning true in itself without recourse to empirical observation, based on the definition of society “as a body of men who hold certain moral views in common” (ibid). However, the problem with the extreme thesis is that it necessarily implies a society is equivalent in all respects to its morality the destruction of the morality by the performance of private acts contrary to the morality, is the same thing as saying the entire society has been destroyed (ibid). Hart states “But even if conventional morality did so change, the society in question would not have been destroyed or ‘subverted’” (ibid). Hart continues, “We should compare such a development not to the violent overthrow of government but to a peaceful constitutional change in its form, consistent not only with the preservation of a society but with its advance” (ibid).

Hart is a legal positivist and as such he ascribes to the Separability Thesis which asserts law and morality are two distinctly different concepts and one does not necessarily entail nor require the other (Himma, online). Per Hart, the Separability Thesis asserts “that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have done so” (ibid). The Social Fact Thesis is another tenant of legal positivism and asserts laws acquire their validity from “certain social facts” (ibid). Hart asserts societies with advanced legal systems not only espouse “primary rules” which “regulate” criminal actions and “confer […] rights and obligations,” but also secondary “meta-rules” which dictate the processes involved in establishing and maintaining primary rules (ibid). The “rule of recognition” is a secondary meta-rule which “specif[ies] some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts” (ibid). Even though morality and law are separate and just happen at times to coincide, Hart further asserts “the rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values” (ibid). In line with the Social Fact Thesis, per Hart, the validity of moral principles must be established by “rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials” (ibid). Hart, it seems, would support the moderate thesis to justify the enforcement of morality. Even though morality and law are distinct and separate concepts, a principle of morality can be incorporated into the legal system because it is validated by the common public adoption of the principle, which would serve to bind the society together. An immoral act can be made illegal if there evidence showing it is harmful to the unity of society. Conversely, it could be argued that Dworkin seems to support a version of the extreme thesis to justify morality in law.

In “Law as Integrity,” Dworkin asserts, descriptively, “Law is an interpretive concept” (135). Further, Dworkin asserts, “Law’s empire is defined by attitude, not territory or power or process” (137). Law’s attitude is interpretative, but being interpretative it is significantly multifaceted, with the attributes, among others, of being self-reflective, protestant, and constructive (ibid). Law, being self-reflective, means law is political in that it requires reflection upon the nature of the “political structure of [the] community” (ibid; Himma, online). In being protestant, law places responsibility on the citizen to reflect on “what his society’s public commitments to principle are, and what these commitments require in new circumstances” (137). Law, being constructive, means “it aims, in the interpretive spirit, to lay principle over practice to show the best route to a better future, keeping the right faith with the past” (ibid).

Dworkin asserts, normatively, judicial decisions should be reached “by interpreting the political structure of their community” “by trying to find the best justification they can find, in principles of political morality, for the structure as a whole, from the most profound constitutional rules and arrangements of the details” (Himma, online). Per Dworkin, the integrity of law is based in the adjudication and application of law in concert with interpretive and constructive principles. Dworkin states “According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the law” (130). A judicial ruling must decide “whether legal practice is seen in a better light if we assume the community has accepted the principle” in question (130-131). Judges should look to the historical principles of law only to justify the principles “in an overall story worth telling now,” a story which affirms “that present practice can be organized by and justified in principles sufficiently attractive to provide an honorable future” (131). Dworkin established “two elements of a successful interpretation” regarding a legal issue (Himma, online). The first element requires that the interpretation of any legal issue must “fit” and “cohere” “with existing legal” principles regarding the issue (ibid). Second, the interpretation “must present” the principles “in the best possible moral light” (ibid). Both elements provide justification, including “moral justification” for the society’s principles (ibid).

Dworkin analogously offers the example of a chain novel to demonstrate his concept of law being interpretative and constructive. Dworkin’s example demonstrates how judges must thoughtfully consider what has been written before them, and then apply their own interpretations of the text based on layers of societal, political, and legal meaning and context (132). Judges must adjudicate constructively in order to continue the story of law in a way that fits and coheres with the principles of the past, present and optimism for the future with the goal of making the story the best it can be for society (ibid). For Dworkin, adjudication is both interpretative and constructive in that it considers the principles of the society, including political, social, and legal principles, and then forms a ruling based on what will “fit” and “cohere” with the principles, which thus provides “moral justification” for the principles by presenting the principles in the “best possible moral light” (Himma, online). Dworkin’s theory makes the judge a part of the whole of society, acting as a caretaker through thoughtful interpretation and then constructive application of principles reflecting of the society’s interests. In this way, the judge is not outside the realm of the citizenry, passing down rulings from obscure legal texts unreflective of social input, but instead deeply involved in the continuum of social discourse which reflects the principles of the society as a whole.

Hart and Dworkin both assert there is a role for society in determining the place of morality in law. Hart asserts a shared morality is necessary for the existence of society in that it helps bind the society and supplements the law’s enforcement of acts which may harm others. Social changes in morality can advance society. Such moral changes in society can act as rules of recognition, affirming the morality of the act in question is adopted by and compatible with the principles of the society. Hart seems to have a place for morality in law if it coheres with the social facts of the matter, meaning, if it coheres with the society’s adoption of the morality of the issue and evidence shows the immorality of the issue threatens the unity of society. Dworkin also has a place for society in determining the place of morality in law in that he asserts law requires citizens to be responsible for reflecting on the demands of public principles and the changes to such demands when society changes. The public principles entail social, political, and legal principles, which a society adopts. If a society adopts a principle, then the law must interpret and construct future decisions in ways which fit and cohere with the principle.

Both Hart and Dworkin assert society has a role in the adoption of principles, which then can become law. Hart, however, sees morality as being applied to law via the rule of recognition. For Hart, it seems, morality and law are distinctly separate, and as such, morality can only be applied to law through a rule which affirms the utility of morality for the greater good as law. Morality in law, for Hart, is justified and validated through the rule of recognition by the common public adoption of the moral principle and its utility in binding the society together. The role of the judge in such a case would be to not apply morality, but instead to apply the rule of recognition, i.e. morality affirmed as legal, and utility when deciding a case.

Dworkin, however, does not seem to think this rule is necessary (Himma, online). Dworkin asserts “if we treat principles as law we must reject the positivists’ first tenet, that the law of a community is distinguished from other social standards by some test in the form of a master rule” (ibid). Dworkin seems to assert morality and law are necessarily intertwined, and as such law must fit and cohere with the principles, including the moral principles, of society. For Dworkin, morality in law is justified and validated because it guides judicial decision making toward the best possible continuation of the law based on what is held as principles within society.

For Hart and Dworkin, society’s moral principles are paramount in determining morality’s place in law. However, for Hart, morality in law is due to utility, while for Dworkin, morality in law is due to necessity. Therefore, the judge’s role in Hart’s view would be to decide cases based on a rule of recognition in which the issue of morality has been previously legally validated and is of instrumental value, a tool of utility. Conversely, in Dworkin’s view, judges would use the intrinsic value of the principles of morality to guide their interpretation and construction of law.

Works Cited

Dworkin, Ronald A. “Law as Integrity.” In Philosophical Problems in the Law, by David M. Adams, 129-137. Boston: Wadsworth Cengage Learning, 2013.

Hart, H. L. A. “Law, Liberty, Morality.” In Philosophical Problems in the Law, 5th Ed., by David M. Adams, 266-268. Boston: Wadsworth Cengage Learning, 2013.

Himma, Kenneth Einar. “Legal Positivism.” Internet Encyclopedia of Philosophy. June 28, 2005. (accessed November 2, 2012).

—. “Philosophy of Law.” Internet Encyclopedia of Philosophy. April 19, 2009. (accessed November 2, 2012).

Applying Natural Law Theory and Legal Positivism to the Nuremberg Trials

In “Opening Address for the U.S., Nuremberg Trials,” Robert H. Jackson, chief prosecutor for the United States at the Nuremberg Trials, argues for the validity of the trials based on a concept of justice predicated upon an assertion of an absolute right and wrong. Conversely, U.S. federal judge, Charles E. Wyzanski, Jr. in “Nuremberg: A Fair Trial?,” argues against the trials based on a concept of justice predicated upon an assertion that, despite the immoral acts committed by the defendants, the trials did not cohere with established legal principles, such as ex post facto principles. For this paper, I will argue both jurists base their arguments on the concept of justice, but Jackson bases his conception of justice on natural law theory while Wyzanski bases his conception of justice more on legal positivism. Ultimately, I will argue natural law theory seems to pose problems for ex post facto principles, but legal positivism doesn’t seem to adequately address how innovative yet harmful actions should be addressed. Therefore, both concepts of justice would seem to lead to injustice.


Ex post facto laws are explicitly prohibited in Article I, Section 9 of the U.S. Constitution. Wyzanski explains ex post facto laws are illegitimate because they charge an individual with a crime before there was a law against the crime, which makes the rule of the authority arbitrary (31). If the government can make any action illegal and punishable after the fact, then the citizens have no standard to base the legality of action upon.


In his opening address, Jackson argues against the claims that the charges against the defendants were illegitimate ex post facto laws. Jackson argues Germany participated in international conventions which “prescribed certain restraints as to the treatment of belligerents” and “certain immunities for civilian populations” occupied by a foreign army (25-26). He argues it is not true the Charter was “new law, not authoritatively declared at the time” the acts were committed and unknown to the defendants (26). He argues the Charter created for the trials was based on such international conventions (26). He offers written and oral statements of Nazi officials demonstrating recognition of international agreements and laws, but explicitly instructing subordinates to not follow them (26). Jackson argues “That men may be protected in relying upon the law at the time they act is the reason we find laws of retrospective operation unjust” (26-27). He states “But these men cannot bring themselves within the reason of the rule which in some systems of jurisprudence prohibit ex post facto laws” (27). Jackson argues the defendants, by authorizing disobedience to the laws, knew the laws existed (27). Additionally, the defendants were shown to have consistently disregarded laws they deemed were contrary to their needs (27).


Regarding morality, Jackson argues the trials were valid based on actions being absolutely right or wrong. Jackson argues “The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating, that civilization cannot tolerate their being repeated” (23). Jackson explains the defendants’ guilt should not be based on the “mere technical or incidental transgression of international conventions” but instead on “planned and intended conduct that involves moral as well as legal wrong” (25). Regarding the First and Second Counts, Jackson asserts it was “intolerable” there was a time in which “war-inciting” was not considered a crime, despite how reprehensibly immoral it was (27). He states, “Plain people, with their earthly common sense, revolted at such fictions and legalisms so contrary to ethical principles and demanded checks on war immunity” (27). Jackson asserts there are actions which are morally reprehensible and unethical, and such actions are intrinsically against the law. Law, it seems for Jackson, depends on morality and extreme moral wrongs should be punishable as legal wrongs.


Wyzanski argues the trials did violate ex post facto principles. He quotes the Fourth Count as stating the wrongs of the defendants “constituted violations of international conventions, of internal penal laws, of the general principles of criminal law as derived from the criminal law of all civilized nations” (30). Wyzanski asserts at the time there were no such international conventions that explicitly forbade “a state or its inhabitants [from] murder[ing] its own citizens, in time either of war or of peace,” therefore, the charge would violate ex post facto principles (30). Even, he argues, if the charge meant a new legal body could be created to prosecute the most immoral actions committed based on “a broad principle of universal international criminal law which is according to the law of most penal codes and public sentiment in most places,” then it would still conflict with ex post facto principles (30). However, Wyzanski states, the saving of the charge rests in the addition of “internal penal laws” (31). He states even if a defendant argued they were acting under superior orders in killing citizens, and there existed a German law which excused the defendant’s guilt based on superior orders, “the superior order could be disregarded by a court applying German law, on the ground that it was so repugnant to ‘natural law’ as to be void” (31). Per Wyzanski, two parts of the charge would violate ex post fact principles, while one would be admissible if the law could fall under an “internal penal code” of “natural law.”


However, Wyzanski argues the Second Count does violate ex post facto principles. He quotes the charge as stating “the defendants participated ‘in the planning, preparation, initiation and waging of wars of aggression, which were also wars in violation of international treaties, agreements and assurances” (31). He argues, despite references made to international declarations, “the body of growing custom to which reference is made is custom directed at sovereign states, not at individuals” (31). Per Wyzanksi, no international declaration explicitly forbade individuals from aiding in “waging an aggressive war” (31). Therefore, the charge against individuals aiding in waging an aggressive war would be an ex post facto law (31).


Wyzanski asserts the actions of the defendants were morally “repugnant” (30). However, Wyzanski quotes a English politician, Lord Digby, as stating “There is in Parliament a double Power of Life and Death by Bill, a Judicial Power, and a legislative” and “the measure of the one, is what is legally just; of the other, what is Prudentially and Politickly fit for the good and preservation of the whole” (34). With this quote, Wyzanski establishes the recognition of two functions of the government; one is the pursuance of legal justice and the other is the pursuance of what is moral and ethical for the society. Wyzanski continues the quote, “But these two, under favour, are not to be confounded in Judgment: we must not piece up want of legality with matter of convenience, nor the defailance of prudential fitness with a pretense of Legal Justice” (34). Wyzanski, through use of this quote, is asserting a government should not mix matters of legality with matters of morality. The reason Wyzanski offers is because “procedural safeguards” ensure liberty, therefore, legal procedures should be adhered to regardless of how immoral an action is (34). Wyzanski’s argument that the rule of law requires adherence to legal principles, despite the immorality of the actions committed, is clearly opposed to Jackson’s view.


Jackson’s arguments seem to fit with natural law theory, as asserted by St. Thomas Aquinas. Aquinas, based on Aristotle, asserts the purpose of law is to achieve eudaemonia (82). Therefore, just legal matters are those “which are adapted to produce and preserve happiness and its parts for the body politic” (82). He states, “Law is nothing else than an ordinance of reason for the common good, promulgated by him who has care of the community” (82). Per Aquinas, God has made natural law, i.e. morality, known to humans by instilling it in humans’ minds (82). Aquinas states “every act of reasoning is based on principles that are known naturally, and every act of appetite in respect of the means is derived from the natural appetite in respect of the last end” (83). The last end for humans is eudaemonia and humans use their reason to achieve eudaemonia. Therefore, Aquinas asserts, “the first direction of our acts to their end must…be through the natural law” (83). Humans need to use natural law to achieve eudaemonia and as such, human laws are just only if they cohere with natural law. Quoting Augustine, Aquinas asserts, “that which is not just seems to be no law at all” (83).


Wyzanski’s arguments seem to fit more with John Austin’s legal positivism which draws a distinction between morality and law. Austin distinguishes between “laws set by God to” humans and “laws set by men to men” (64). He argues laws of God are moral dictates on action and laws of humans are social and legal dictates on action (64-67). He states “The existence of law is one thing; its merit or demerit is another” (67). Austin refers to Sir William Blackstone as stating God’s laws take priority over other laws for humans to follow; human laws must not contradict Gods laws; human laws are invalid if they contradict God’s laws; laws have validity when they are derived from the laws of God (68). Austin argues there is a difference between “ought” and “is” in this case. He states if the claim is laws “ought” to follow Blackstone’s criteria, then he agrees (68). However, if the claim is “no human law which conflicts with the Divine law is a law,” then he disagrees (68). Austin claims laws are legally binding regardless of if they cohere with morality. For legal positivists, like Austin, law and morality should be separated because “the laws of God are not always certain” and society requires obedience to laws, or else it would fall into anarchy (68).


Jackson’s arguments rely on natural law theory while Wyzanski’s rely more on legal positivism. Jackson and Aquinas speak of the intrinsic morality of law. They speak of law requiring adherence to morality. Laws which are contrary to morality are illegitimate. Immoral actions require punishment under the law. An immoral action protected by law is not justice. Morality is law. Law is necessarily moral and justice is adherence to morality.


Conversely, Wyzanski and Austin speak of law and morality as necessarily separate. They argue there is a difference between the morality of an action and the legality of the action. Something very well may be immoral, but this does not make it necessarily illegal. Law is a specific, proscribed, set of commands and punishments. Therefore, if a particular action, regardless of how immoral it may be, is not specifically proscribed as a command, then it is not a punishable offence under the law. Law is law and morality is morality. The two may intermingle but they are and should be differentiated. To not differentiate the two would lead to, on one extreme, infringement on individual liberties, and on the other extreme, anarchy. Justice is adherence to the procedures of law.


The two different ideologies pose different problems for the legal system. Natural law theory would pose problems for ex post fact principles. If human law is ultimately answerable to God’s law, then morality is ultimately the highest legally binding authority. Guilt of actions would be determined by resorting to morality and not to stated legal statutes or codes. Also, God’s moral dictates are not always clear. Nor are God’s moral dictates universal in a society that values freedom of religion. Punishing people based on morality, or based on laws after the fact could lead to infringement on liberty. However, legal positivism would pose a problem for punishing individuals, who are not under the jurisdiction of military tribunals, and who commit harmful acts against society. The glaring immorality of certain types of harmful acts can serve as a precedent. If morality and law are completely separated, then those who commit innovative yet harmful acts could not be punished under the law. The justice system would have to let the morally reprehensible offender go, and then create the law. The person could be tried under a military tribunal, and then a law could be created in the civilian justice system against the act. However, the consequence of such a thing could be a separate military system prosecuting civilians for acts which, while harmful, are not under military jurisdiction. Also, punishing those who could fall under a military tribunal instead of a court of law, such as heads of state, could make the punishment for their actions seem merely like a consequence of losing a war, which would take away from the seriousness of their actions. Legal positivism may adhere to ex post facto principles, but in doing so could allow for harmful acts to go unpunished or for an unacceptable judicial arrangement to prosecute such acts.


Jackson argued the Nuremberg trials would best serve justice based on a conception of justice involving the natural law theory. Wyzanski argued not having the trials would best serve justice based on a conception of justice involving legal positivism. Under natural law theory, ex post facto principles could be violated, leading to infringement on liberty. However, while legal positivism preserves ex post facto principles, it could allow harmful acts to go unpunished or allow for an unacceptable alternate system of justice. It seems either option could lead to an injustice.


Works Cited

Aquinas, St. Thomas. “What is Law? From Summa Theologiae.” Adams, David M. Philosophical Problems in the Law. Boston: Wadsworth Cengage Learning, 2012. 82-83. Print.

Austin, John. “Legal Positivism.” Adams, David M. Philosophical Problems in the Law. Boston: Wadsworth Cengage Learning, 2012. 64-69. Print.

Jackson, Robert H. “Opening Address for the U.S., Nuremberg Trials.” Adams, David M. Philosophical Problems in the Law. Boston: Wadsworth Cengage Learning, 2012. 23-28. Print.

Wyzanski, Jr., Charles E. “Nuremberg: A Fair Trial?” Adams, David M. Philosophical Problems in the Law. Boston: Wadsworth Cengage Learning, 2012. 29-34. Print.