From there, Souter shifts gears and looks atHolmes' ethical theories. Souter says that forHolmes, a moral term such as good or bad meant nomore than the "functional efficiency of a law inbringing about a result which the crowd...doesdesire," much as one would use the terms todescribe a physical object such as a knife. Thus amoral law for Holmes, Souter says, is one whichfurthers the interest of a particular individual.

Souter uses this, too, to show that Holmes'theory is internally consistent. Holmes believes,Souter deduces, that the law must conform to thewants of the strongest in society in order tosucceed. Since in the real world these lucky turnof events for the strongest will not necessarilybe seen by all as favoring everyone's interests,Souter says, morality and legality again need haveno connection in Holmes' view.

In his second chapter, Souter turns thespotlight on critics of positivism, and assessesthe natural law doctrine to which they adhere. Byexamining the theory's prominent writings, Souterconcludes that these theorists unknowingly agreewith Holmes on the four basic characteristics oflaw.

Souter does criticize several natural lawtheorists. For instance, he contends that oneinterpretation of a natural law of morality--adefinition which says that a moral law is one"which advances man's true nature"--is too vague.

"The natural law writer already quoted admitsas much when he says that he will 'have to rest onthe assertion of a belief which he realizes mayseem naive," Souter wrote, defending hisskepticism.

But if Souter is critical of a few theorists,he says he recognizes that some other natural lawtheories do hold. Specifically, he says the theorythat a moral law is one for which a "numericalmajority" of the population feels "advances man'strue nature" is internally consistent and at leastproviding some testability.

At this point, Souter notes, the two theoriescontradict other, although on much narrowergrounds than other critics had thought. UnderHolmes' conception, a law need only further theinterests of the strongest group, not themajority. Natural law theorists, meanwhile,maintain that a law will necessarily cater to themajority.

Ultimately, Souter raises doubts about naturallaw theory. Near the end of his paper, he wonderswhether every existing law really passes the testof majority morality, as natural law would say.

Yet Souter keeps to his original promise. Heshies away from making any judgements, leavingthat task instead to the realm of empiricism.

And that job, Souter says in his conclusion, isnot an easy one. Souter anticipates that advocateson each side of the debate could easily amendtheir theories to make them legitimate.

"[W]ould the natural law thinkers simply acceptthe separation of law and morals? I think not...Ibelieve they would then substitute a concept oflaw which a priori included moral standards, or atleast reference to acceptance by the majority,"Souter wrote about the naturalists.

As for Holmes, "he would simply stress that thecoincidence of law with good law or with law asthe majority desires it, is merely incidental tothe fact that the majority now has the power tocompel recognition of its interests," Souterwrote