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At this point I would like to bring us back to our hypothetical timetraveller and that, although she may find the terrain of contemporary jurisprudential debate familiar, the same could not be said of the rest of the world around her. Technological advancements in areas such as transport, communications and entertainment, which we take for granted, appear almost unimaginable when viewed from the perspective of a mind formed by the nineteenth century. I note this point in particular because, as our technological capacities have increased, so have the means by which we are able to detrimentally interfere with one another’s existence. The number of interactions we have with one another, and the planes on which they take place, mean that there has never been more scope for legal rules to govern them. The debate between legal positivists and natural lawyers has therefore never been more relevant. Now more than ever before, a rigorous exploration of ethical principles and the extent to which moral permissibility is a necessary criterion of a rule’s legal validity is needed. In his 1978 book Reason and

Morality, American philosopher Alan Gewirth, the author whose works will form the foundation of the strong theory of natural law that the remainder of this volume seeks to defend, put the point succinctly: In a century where the evils that man can do to man have reached unparalleled extremes of barbarism and tragedy, the philosophic concern with rational justification in ethics is more than a quest for certainty. It is also an attempt to make coherent sense of persons’ deepest concerns about the principles that should govern the ways they treat one another. The extent to which a moral theory such as that proposed by Gewirth is genuinely of use to a theory relating to the normative force claimed by legal rules is, of course, far from settled. Like many others, Spaak believes empirical reality shows us that law and legal rules ‘necessarily claims to trump moral and other reasons for action’ insofar as, in a courtroom situation where the conduct required by a legal rule is viewed as morally impermissible, the court will rarely see this as sufficient reason to aside the legal rule.2 Let us frame this dispute in the abstract, and consider the existence of a legal rule that directs us towards an end that is morally impermissible. We have here a normative conflict: a rule claiming to be a legal norm (RL) asks us to behave in a certain way (Φ), and a moral norm (RM) directs us to refrain from undertaking that act (–Φ). How ought we to resolve this dilemma, since it is clearly impossible that both (RL x, Φ & RM x, –Φ) can operate at the same time? If the positivist claim is correct and a rule’s moral permissibility need not be a condition of its legal validity, then Spaak’s observation is correct and (RM x, –Φ) < (RL x, Φ). Or if we accept both Austin and Aquinas’ position that the whole point of law is that it exists to guide our conduct, does this require us to acknowledge that RL can only succeed in this enterprise if its directives are substantively limited by RM? This book seeks to establish that the second of these two statements is

true, which first requires us to identify a supreme moral principle that is capable of providing the test that this connection requires. Part 1 of this work will argue that the PGC, developed in Gewirth’s ‘Reason and Morality’’ 3 is capable of serving as such a test. Chapter 1 will begin with an outline the workings of the PGC and endorse the claim that, by a dialectically necessary argument, it successfully establishes a test by which we can ascertain the moral permissibility of any action. This is a test that all agents are required to accept by the fact of their being an agent, meaning the PGC acts in a way that is analogous to a categorical imperative and restricts the range of morally permissible actions to those that are in conformity with its requirements. Such a position relies on a Kantian conception of the person, and this assumption – and the validity of the conclusions reached by adopting it – will then be addressed, before the chapter closes with a defence of the PGC against common arguments against its validity. Thinkers that will be engaged with directly are Williams, Friedman, Foot and Nietzsche; all can be broadly categorised as being from the sceptical tradition, and each of their rebuttals will be assessed for their success in defeating the PGC. The chapter will close by addressing the writing of David Enoch. His claim that logical contradiction is not a charge that would trouble an agent who decides that they should not be bound by the PGC could be a troubling line of argument for Gewirthian Ethical

Rationalism, but Enoch’s argument will be shown to be a straw man that does not substantively engage with the argument for the PGC at all. Taken together, these defences of the philosophical soundness of the PGC will provide the ground work required for chapter two, which will seek to locate the claim made by the PGC in a unified hierarchy of reasons.