Conclusion

In this chapter we have seen how the dispute between natural law and positivism has widespread consequences for our understanding not just of the nature of law itself, but also of the institution of crim­inal punishment and of the nature of the state.

This belief flows through into their view of punishment, which they hold is a moral idea as well, and victimization, which is no more a punishment than a system of rules aimed at the private satisfaction of the Oligarchs is a system of law. Retributivism's objection to vic­timization stems from the natural law theorist's recognition that there are constraints—constraints that deterrence theorists fail to recognize—on the proper use of the coercive power of the state. Reflecting on these issues also leads to the view that Hobbes' posi­tivist view of the state is wrong and that Aquinas was surely right when he said that to be a government you must have not only power but also the purpose of aiming at the common good.

We have also seen that the dispute between positivism and natu­ral law is not simply an argument about words: underlying the dis­agreement about what “law” means are deep differences about pol­itics and morality. The idea of autonomy that is central to the natural law theorist's conception of courts and trials is the same notion as the one that played so central role in Kant's conception of morality. And respect for autonomy in legal philosophy leads to the rejection of consequentialism, a rejection that I argued was at the heart of Kant's ethics. This interconnectedness of issues is inevitable. In thinking about the law, as a specific set of institutions within the state, our views are bound to be connected with more general ques­tions about the state—with political philosophy—and, in the end, with the most fundamental questions of morality.