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FINNIS ON NATURE, REASON, GOD

Published online by Cambridge University Press:  01 December 2007

Mark C. Murphy
Mark C. Murphy*
Affiliation:
Georgetown University
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Abstract

It is often claimed that John Finnis's natural law theory is detachable from the ultimate theistic explanation that he offers in the final chapter of Natural Law and Natural Rights. My aim in this paper is to think through the question of the detachability of Finnis's theistic explanation of the natural law from the remainder of his natural law view, both in Natural Law and Natural Rights and beyond. I argue that Finnis's theistic explanation of the natural law as actually presented can be, without too much strain, treated as largely detachable in the way that his readers have by and large supposed it to be; indeed, Finnis's account as actually presented really amounts to no explanation of the natural law at all, theistic or otherwise, and that fact accounts in part for the ease with which Finnis's natural law view can be detached from theism of that final chapter. Nevertheless, the considerations raised in that chapter militate in favor of a much more thoroughgoing, largely nondetachable theistic account. And it is just such an account that we find Finnis affirming in the development of his views after Natural Law and Natural Rights.

Type
Research Article
Information
Legal Theory , Volume 13 , Issue 3-4 , December 2007 , pp. 187 - 209
Copyright
Copyright © Cambridge University Press 2008

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References

1. John Finnis, Natural Law and Natural Rights (1980).

2. Nicola Lacey, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (2004), at 347.

3. J.D. Goldsworthy, for example, after noting some worries about Finnis's view and suggesting that these worries might be answered by considering the ch. 13 argument, declines to consider it: “Here we cannot follow him into the thicket of theology.” Goldsworthy, God or Mackie? The Dilemma of Secular Moral Philosophy, 30 Am. J. Juris. 43–78 (1985), 77.

4. Brian Leiter, The End of Empire: Dworkin and Jurisprudence in the 21st Century, 36 Rutgers L.J. 165–181 (2004–2005), at 168.

5. In sympathetically criticizing Finnis's natural law view, Kent Greenawalt summarizes the natural law position in ten theses. In commenting on his list, Greenawalt notes that there is no mention of God's relationship to the principles of the natural law. He justifies this omission by arguing that:

Although in modern times, belief in natural law is strongly correlated with belief in God, and opponents of natural law views often have mistakenly supposed these views are simply religious, natural law theorists have consistently asserted that individuals can discover the natural law, independent of their particular religious beliefs. Finnis strongly claims, further, that one can establish the validity of natural law theory without invoking religious premises.

Kent Greenawalt, How Persuasive is Natural Law Theory? 75 Notre Dame L. Rev. 1647–1679, (1999–2000), at 1652. As I argue below, this is a very slender basis on which to assert the detachability of natural law theory from theism.

6. For an account of the essentials of natural law ethics, see Mark C. Murphy, The Natural Law Tradition in Ethics, in Stanford Encyclopedia of Philosophy Ed Zalta, ed., http://plato.stanford.edu/entries/natural-law-ethics/; see also Mark C. Murphy, Natural Law and Practical Rationality (2001), at 1–3.

7. Finnis, supra note 1, at 59–99.

8. Id. at 85–90.

9. Id. at 100–126.

10. I am describing Finnis's approach in id. In more recent work he follows Germain Grisez in holding that these principles of practical reasonableness are specifications of a master principle of morality that requires one to act in a way that is compatible with integral human fulfillment. See Grisez, The Way of the Lord Jesus, Vol. I: Christian Moral Principles (1983), at 184; and Germain Grisez, Joseph Boyle, & John Finnis, Practical Principles, Moral Truth, and Ultimate Ends, 32 Am. J. Juris. 99–151 (1987), at 128.

11. H.L.A. Hart, The Concept of Law (2nd ed. 1994), at 15, 279–280.

12. Finnis, supra note 1, at 9–11.

13. Hart, supra note 11, at 88–91.

14. Finnis, supra note 1, at 14–15.

15. Id. at 371.

16. Id. at 386.

17. Id. at 404. I have omitted the first item from this list (which does not appeal specifically to D's capacity to explain states of affairs concerned more immediately with the natural law) and renumbered.

18. Id. at 373.

19. This is probably a bit exaggerated, as our interest in the thirst-quenching features of water are noncontingent, and this distinction between contingent and noncontingent interests could be used to set up the distinction I want to make.

20. Id. at 89–90.

21. Id. at 34, quoting D.J. O'Connor, Aquinas and Natural Law (1967), at 18.

22. Finnis, supra note 1, at 73.

23. Contrast with, say, Aquinas as often described, for example by Anthony Lisska, on whose view being a human good can be identified with being the end of an essential, basic human disposition. See Lisska, Aquinas's Theory of Natural Law: An Analytic Reconstruction (1996), at 198.

24. Hugo Grotius, On the Law of War and Peace (De Jure Belli ac Pacis) (1625/1949), Preface, sec. 11.

25. Unless one thinks that all counterpossible claims are trivially true—then it would be much easier to evaluate.

26. For remarks along these lines, see Trenton Merricks, Objects and Persons (2001), at 5–7.

27. I make no argument about the actual causes of his changes of mind/clarification of his views; my remarks are offered only in the spirit of rational reconstruction.

28. Grisez et al., supra note 10, at 135.

29. Or so participation is understood in Finnis, supra note 1; see id. at. 399.

30. Finnis, supra note 1, at 92–95.

31. Of course, with respect to goodness, the explanation cannot be (efficiently) causal—that is not the way that goodness gets explained.

32. Robert M. Adams, Finite and Infinite Goods: A Framework for Ethics (1999).

33. Id. at 231–276.

34. Id. at 28–38.

35. Id. at 355–356.

36. Finnis, supra note 1, at 373.

37. Kant, Critique of Practical Reason (1788/1996), V:122–134.

38. On this idea of rational instability, I am here following some thoughts of John Hare's; see Hare, Kant on the Rational Instability of Atheism, in God and the Ethics of Belief 202–218 (Andrew Dole & Andrew Chignell eds., 2005).

39. Finnis, supra note 1, at 406.

40. Grisez et al., supra note 10, at 141–147.

41. John Finnis, On the Practical Meaning of Secularism, 73 Notre Dame L. Rev. 491–516 (1997–1998).

42. Id. at 493.