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GROUNDS OF LAW AND LEGAL THEORY: A Response

Published online by Cambridge University Press:  01 December 2007

John Finnis
John Finnis*
Affiliation:
University of Oxford; Notre Dame Law School
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Abstract

Linking theses of Plato, Wittgenstein, and Weber, section I argues that identification of central cases and settling of focal meanings depend upon the theorist's purpose(s) and, in the case of theory about human affairs—theory adequately attentive to the four irreducible orders in which human persons live and act—upon the purposes for which we intelligibly and intelligently act. Among these purposes, primacy (centrality) is to be accorded (by acknowledgement, not fiat) to purposes which are, as best the theorist can judge, reasonable and fit to be adopted by anyone, the theorist included. Section II defends the reasonableness (and hence entitlement to universal assent) of practical and moral judgments, against Michael Perry's ultimately nihilist claims that egoism's challenge to moral normativity has gone unanswered and that “reason for A” does not entail “reason for” anyone else. Section III takes up Steven Smith's suggestion that such subjectivism is encouraged by the talk in Natural Law and Natural Rights of “pursuing goods,” talk which (he argues) is individualistic and neglectful of (other) persons, inimical to an understanding of friendship, and impotent in the face of egoism. Here as elsewhere the key is to grasp that understanding any basic or intrinsic human good is to understand it as good for anyone like me and thus—since as I instantiate and embody a universal, viz. human being—as a good common to (good for) anyone and everyone. Section IV argues that common good (which includes respect for human rights, and the Rule of Law) gives reason for exercise and acceptance of authority, and for allegiance, even (and in a sense, especially) in time of breakdown. Section V argues that natural law theory is no more dependent on affirming God's existence than any other theory is, in any of the four orders of theory, but equally that is not safe for atheists. For, like any other sound theory, it suggests and is consistent with questions and answers about its grounds, in this case about the source of its normativity and of the human nature that its normative universals presuppose and affirm; and the answers are those argued for, too abstemiously, in the last chapter of NLNR and, more adequately, in the equivalent chapter of Aquinas.

Type
Research Article
Information
Legal Theory , Volume 13 , Issue 3-4 , December 2007 , pp. 315 - 344
Copyright
Copyright © Cambridge University Press 2008

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References

1. On Foot's response to my paper and her later far-reaching retreat from the position she was defending in those days, see Finnis, Foundations of Practical Reason Revisited, 50 Am. J. Juris. 109–131 (2006), at 121 n. 24.

2. H.L.A. Hart, The Concept of Law (1961), at 79.

3. John Finnis, Reason, Authority and Friendship in Law and Morals, in Jowett Papers 1968–1969 101–124 (1970), at 107–108.

4. Id. at 108–109 (emphases added).

5. John Finnis, Natural Law and Natural Rights (1980), at 136–138. There I deliberately chose to make the technical order third on the list and the moral order fourth. But in subsequent writings I adhere to Aquinas's order, expounded in the next paragraph below.

6. Ludwig Wittgenstein, Philosophical Investigations (G.E.M. Anscombe trans., 1953), at sec. 69, quoted in Finnis, supra note 3, at 100.

7. Finnis, supra note 5, at 278–279 (emphases added).

8. Id. at 11 (emphasis added).

9. Thus Wittgenstein, supra note 6, at 66: “for if you look at them [games] you will not see something that is common to all, but similarities, relationships, and a whole series of them at that.”

10. Finnis, supra note 5, 98.

11. Id. at 18.

12. Nicola Lacey, A Life of H.L.A Hart: The Nightmare and the Noble Dream (2004), at 236–237.

13. Id. at 79.

14. Id.

15. Max Weber, On Law (Max Rheinstein ed., 1954), at 227–228; J. M. Finnis, On “Positivism” and “Legal Rational Authority,” 5 Oxford J. Legal Stud. 74–90 (1985).

16. Michael J. Perry, Morality and Normativity, 13 Legal Theory 211–255 (2007), at 211.

17. Perry, supra note 16, at 211, n. 3.

18. Aquinas's examples are committing adultery, committing incest, denying that Christ is God, and engaging in promiscuous sex. But he makes clear that the real moral obligatoriness of an erroneous conscience holds however atrocious the wrong that the person in error judges to be right. De veritate q. 17 a. 4; Summa theologiae I–II q. 19 a. 5.

19. “There is much to be said for Leo Strauss's judgment that ‘knowledge of the indefinitely large variety of notions of right and wrong [i.e., of Perry's “many moralities”] is so far from being incompatible with the idea of natural right that it is the essential conditions for the emergence of that idea: realization of the variety of notions of right is the incentive for the quest for natural right.’” Finnis, supra note 5, at 29, quoting Strauss, Natural Right and History (1953), at 10.

20. See, e.g., Finnis, supra note 5, at 103.

21. Finnis, Retribution: Punishment's Formative Aim, 44 Am. J. Juris. 94–102 (1999), at 91–96.

22. Friedrich Nietzsche, III On the Genealogy of Morals 24 (Douglas Smith trans., 1996) (1887), at 128. Also 126: “these hard, severe, abstemious, heroic spirits . . . these pale atheists, anti-Christians, immoralists, nihilists . . . these men in whom the intellectual conscience is alone embodied and dwells today. . . . These men are far from free spirits: for they still believe in the truth!” And here Nietzsche associates himself with the secretum of the highest grades of “that invincible order of the Assassins, that order of free spirits par excellence.” The secretum was that “nothing is true, everything is permitted.” He calls this a “proposition” (true? false?) with “labyrinthine consequences” (id.), and it seems to be his that he has in mind when he says (III.27, at 135): “from now on morality will be destroyed through the coming to consciousness of the will to truth.” [Writing this in 1999, I failed to notice, incidentally, that here Nietzsche foreshadows the diseased attraction of growing numbers of today's atheists and ex-Christians (usually, today, on the political “left”) to certain kinds of Islamic suicidal terrorism of which the Assassin fedayeen are one prototype.]

23. Finnis, supra note 21, at 94.

24. Will is not studied explicitly in Finnis, supra note 5, until ch. 11.8, where 337–341 are important for an understanding of the whole book. But it follows from what is said there that will is under consideration from the outset of ch. III. “Responsiveness” is the term I use to define will in Finnis, Aquinas: Moral, Political, and Legal Theory (1998), but already in Finnis, supra note 5, at 339, I say that Aquinas regards [intelligent] human movement “as a person's response to the attraction of (something considered to be) good.” (But “attraction” is a hazardous model for the operations of reason and will, since it obscures the role of reasons, which motivate in a sui generis way not well modeled by subrational motivations such as sensory or emotional attraction and aversion.)

25. Finnis, supra note 5, at 177.

26. Id. at 72.

27. Perry supra note 16, at 238, quoting, in the last sentence, Richard Joyce, The Myth of Morality (2002), at 126.

28. Perry supra note 16, at 238 n. 83.

29. Christine Korsgaard, The Normativity of Instrumental Reason, in Ethics and Practical Reason (Garrett Cullity and Berys Gaut eds., 1997).

30. Id. at 233.

31. Id. at 250.

32. Id. at 252.

33. Id. at 251.

34. Id. at 250–251. Korsgaard, at 251, 252, is tempted to resile from this to allow for a “heroic existentialist act” of “just tak[ing] one's will at a certain moment to be normative, and commit[ting] oneself forever to the end selected at that moment, . . . for no other reason that that [one] wills it so.” But she should concede that unless such a person considers that there is something worthwhile in doing so, some good in or reason for doing so, such an “act of commitment” and of subsequent “taking as normative” is not rational but irrational.

35. Id. at 250.

36. Finnis, supra note 1, at 113–114. At 114–117 I go on to show how Korsgaard's adherence to Kant sadly blocks her understanding of the way such first practical principles bear on moral deliberation and reflection.

37. Perry, supra note 16, at 238 n. 83.

38. Finnis, supra note 5, at 61.

39. Steven D. Smith, Persons Pursuing Goods, 13 Legal Theory 285–313 (2007), at 312.

40. Id. at 285, 288, 308, 309.

41. Id. at 312.

42. Finnis, supra note 5, at 96; see also 64, 104, 262.

43. “which entails the inequality with us of all other creatures of which we have experience, all of them in truth not merely non- but sub-human, or lacking in the dignity of the human because lacking a radical capacity foundational to our reality.” Finnis, supra note 1, at 126. This radical capacity is exemplified by our being the kind of being that can do immaterial things (meaning, proving, invalidating, promising, betraying) with material things (words, gestures). On radical capacity, see John Finnis, A Philosophical Case against Euthanasia, etc., in Euthanasia: Ethical, Legal and Clinical Perspectives(John Keown ed., 1995), at 23–35, 46–55, 62–71, esp. 30–31, 68–70. The metaphysical foundation, soul as the very form and act(uality) of our body, is explored a bit more in John Finnis, ‘The Thing I Am’: Personal Identity in Aquinas and Shakespeare 22 Soc. Phil. & Pol'y 250–282 (2005), reprinted in Personal Identity, 250–282 (Ellen Frankel Paul, Fred D. Miller & Jeffrey Paul eds., 2005), at 253–257.

44. See Finnis, supra note 24, at 127:

“One should love one's neighbor.” But to love a person volitionally (not simply emotionally) is to will that person's good. So, to love one's neighbor is to will the neighbor's good—and not just this or that good, but good somehow integrally; and nothing inconsistent with a harmonious whole which includes one's own good (likewise integrated in itself and with others' good). Thus the love of neighbor principle tends to unify one's goals. Moreover, the love of neighbor required by this principle need not be a “particular friendship.” FN: The love involved in a particular friendship [amor amicitiae] does have at its core, however, one's willingness as a friend to treat the friend as one treats oneself [amans se habet ad amatum, in amore amicitiae, ut ad seipsum]: II–II q. 28 a. 1 ad 2.

45. Finnis, supra note 1, at 128–129.

46. John Finnis, Fundamentals of Ethics (1983), at 21.

47. Id. at 147–148.

48. Id. at 148–149.

49. Luke 9:25; Matthew 16:26 and Mark 8:36 say “lose his own soul/life [psyches autou].”

50. Smith,supra note 39, at 291.

51. Henry Sidgwick, Outlines of the History of Ethics for English Readers (1902) (1886), at 198: “in the modern ethical view, when it has worked itself clear [of Greek moral philosophy], there are found to be two [regulative and governing faculties recognized under the name of Reason],—Universal Reason and Egoistic Reason, or Conscience and Self-Love.”

52. See II Sent. d. 3 q. 4 a. 1 ad 2: my will's intrinsic object is good, not mine. And the good is the good of all who share the same nature: see II–II q. 31 a. 2 ad 2; q. 64 a. 6c.

53. See ScG III c. 117 n. 5 [2899]; Eth. VIII. 1 n. 4 [1541]; Car. q. un. a. 8c & ad 7; Div. Nom. c. 4. 9; Perf. c. 14 [637]:

because all human beings share in the nature of the species [conveniunt in natura speciei], every human being is naturally a friend [amicus] to every human being; and this is openly shown in the fact that one human being guides, and aids, in misfortune, another who is taking the wrong road.

(This is not contradicted by the next sentence, affirming that “one naturally loves oneself more than another person.”) Eth. IX. 5 n. 2 [1821] says that goodwill towards strangers is not friendship, meaning not “friendship” in the focal sense.

54. “Harmony [harmonia] is the fittingness of order [convenientia ordinis]” (Div. Nom. c. 5. 1 [650]); and “Good consists in order; but people are rightly ordered to other people in mutual dealings [in communi conversatione] both in words and in actions, so that each relates to each as is proper; [and] this fittingness of [interpersonal] order [convenientia ordinis] [is a special type of intelligible good [specialis ratio boni]]” (II–II q. 114 a. 1c); “in intelligent/intelligible [intellectualibus] [i.e., human] loves there is not only order but also the fittingness of order” (Div. Nom. c. 4. 12 [457]).

55. “Neighbor,” “brother [frater],” and “friend” in this context all denote the same affinitas and the same rational motive: II–II q. 44 a. 7c.

56. See, e.g., II–II q. 44 a.7c.

57. Finnis, supra note 24, at 111–112. Perry claims that in Finnis, supra note 5 the only argument for impartiality is from universalizability, and that in the recent paper John Finnis, On ‘Public Reason’ (in which a short version of the just-quoted passage is given), the only argument is from friendship. In fact, in both (and I think all) my treatments of this issue, both the argument from the universal character of intelligible human goods and the argument from the good of friendship are deployed, though in Finnis, supra note 5 they are deployed apart rather than together. Perry has cropped the respective paragraphs quoted from Finnis, supra note 24 and from On ‘Public Reason,’ eliminating from each the references to the respective “other” argument.

58. David Hume, A Treatise of Human Nature (L.A. Selby-Bigge ed., rev. P.H. Nidditch, 1978), 416: “'Tis not contrary to reason for me to prefer the destruction of the whole world to the scratching of my finger”; see Finnis, supra note 1, at 112.

59. John Finnis, Natural Law and the Ethics of Discourse, 43 Am. J. Juris. 53–73 (1998); for its original context of debate with Habermas, see it in 12 Ratio Juris 354–373 (1999).

60. Smith,supra note 39, at 302.

61. Finnis, supra note 5, at 14–15. The passage admittedly first mentions obligation.

62. Smith,supra note 39, at 294 n. 33 (which reports but withdraws his assertion).

63. Pace Smith, supra note 39, at 294.

64. Finnis, supra note 5, at 249.

65. See Id. 255 and my reply to Green's 1983 article on these matters in John Finnis, Law as Coordination 2 Ratio Juris 97–104 (1989), at 100.

66. Id. at 104.

67. Finnis, supra note 5, at 274.

68. Id. at 405.

69. Id. at 372.

70. Perry, supra note 16, at 240.

71. Finnis, supra note 5, at 49.

72. Mark C. Murphy, Finnis on Nature, Reason, God, 13 Legal Theory 187–209 (2007), at 193.

73. See the whole passage in Finnis, supra note 5, at 404, from which Murphy, supra note 72, at 193 n. 17. quotes a main part.

74. Murphy, supra note 72, first sentence of sec. III, at 200.

75. Of course, much more intelligibility still would be added if that recontextualization placed our instantiations of basic goods in the framework of personal immortality or resurrection and of an eternal community in which the good deeds of this life will be “found again” (as Vatican II puts it); and about immortality and resurrection Finnis, supra note 5, is silent even when it outlines “speculations and hopes” (id. at 406) well beyond natural reason.

76. In the face of the often crushing calamities to which human beings are prey, one must regard the disorder as somehow within the stable and intelligible order and abstain from judging it defective or unintelligent because one does not understand its point, lest one:

resemble a country bumpkin [rusticus, idiota, ignorans] who, from the true premise that he does not understand what is going on in a busy laboratory or hospital theatre, draws the conclusion that what is going on is random, unintelligible, pointless or foolish. . . . The intention of an intelligence capable of projecting and actualizing the entire cosmos and all its interlocking orders vast and miniscule (including human minds with all their capacities to understand and reason logically, mathematically, and interpretatively) is not an intention we could ever reasonably hope to understand fully by reasoning from those truths about it which . . . we do manage to understand.

Finnis, supra note 24, at 304.

77. It is not the case that (as Perry, supra note 16, at 220 n. 29 approvingly quotes John Caputo as saying) “God is love” is “as close as the New Testament [gets] to a ‘definition’ of God.”

78. Finnis, supra note 24, at 310.

79. Id. at 311. See nn. 76–78, which include a discussion of the reason for using the masculine pronoun (and implicitly for eschewing modeling creation and providence on the womb—cf. Perry, supra note 16, at 222.)