Cameron M. Fathauer has posted Leff to Right on SSRN. Here is the abstract:
Arthur Leff’s 1979 essay “Unspeakable Ethics, Unnatural Law” poses the most penetrating question in legal philosophy: “Who among us ought to be able to declare law that ought to be obeyed?” This essay takes Leff’s challenge seriously and follows his logic to its conclusion—that without God, normative legal authority collapses into mere power and coercion.
Legal positivism, critical legal theory, and natural law theory all fail to answer Leff’s question because they lack the necessary ontological authority. Since human beings share identical ontology, no human can make normative declarations that another human ought to obey. The problem is fundamentally ontological, not epistemological: even if we knew what was right, we would lack the authority to bind others to it.
This essay argues that only the God of the Bible provides a justifiable ontological foundation for legal authority. God’s unique capacity for performative utterance—speech that simultaneously declares and constitutes reality—enables Him to make declarations that ought to be obeyed. The incarnation is critical here: by subjecting Himself to the very law He commands, God demonstrates that divine law is not arbitrary tyranny but eternal reality made concrete in history.
The essay concludes by sketching how divine authority might be transmitted through human institutions via creation (imago dei), revelation (Scripture), and justification (Holy Spirit), providing a theological architecture for legitimate legal authority in a pluralistic age.