Hostname: page-component-586b7cd67f-t8hqh Total loading time: 0 Render date: 2024-11-26T20:50:06.849Z Has data issue: false hasContentIssue false
  • English
  • Français

FINNIS ON THE AUTHORITY OF LAW AND THE COMMON GOOD

Published online by Cambridge University Press:  06 February 2013

George Duke
George Duke*
Affiliation:
Deakin University, [email protected]
Get access Rights & Permissions [Opens in a new window]

Abstract

This paper seeks to elucidate the role played by the common good in John Finnis's arguments for a generic and presumptive moral obligation to obey the law.1 Finnis's appeal to the common good constitutes a direct challenge to liberal and philosophical anarchist denials of a generic and presumptive obligation to obey the law.2 It is questionable, however, whether Finnis has presented the strongest possible case for his position. In the first section I outline Finnis's account of the relationship between basic goods, the common good, and the authority of law. Section II demonstrates how Finnis's emphasis upon the instrumental nature of the common good leaves his position vulnerable to Joseph Raz's objections3 that not all cases of law make a moral difference and that governmental authority is often unnecessary to resolve coordination problems. I argue that Raz's critique nonetheless fails adequately to address an alternative defense of the existence of a generic and presumptive obligation to obey the law, suggested by some passages in Finnis's work, according to which the common good is integral, rather than merely instrumental, to the good of individuals. In the final section I consider whether Finnis could strengthen his case for a generic and presumptive obligation to obey the law by adopting a more consistently robust—and hence also more contentious—account of the common good.

Type
Research Article
Information
Legal Theory , Volume 19 , Issue 1 , March 2013 , pp. 44 - 62
Copyright
Copyright © Cambridge University Press 2013 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

WORKS CITED

Aiyar, S. (2000) “The Problem of Law's Authority: John Finnis and Joseph Raz on Legal Obligation.” Law and Philosophy 19: 465–489.Google Scholar
Dworkin, R. (1986) Law's Empire (Harvard University Press).Google Scholar
Edmundson, W. A. (2004) “State of the Art: The Duty to Obey the Law.” Legal Theory 10: 215–259.CrossRefGoogle Scholar
Finnis, J. (1983) Fundamentals of Ethics (Clarendon Press).Google Scholar
Finnis, J. (1984) “The Authority of Law in the Predicament of Contemporary Social Theory.” Notre Dame Journal of Legal Ethics and Public Policy 1: 115–137.Google Scholar
Finnis, J. (1987) “On Reason and Authority in Law's Empire.” Law and Philosophy 6: 357–380.CrossRefGoogle Scholar
Finnis, J. (1996) “Is Natural Law Theory Compatible with Limited Government?” In George, R.P., ed., Natural Law, Liberalism and Morality, 1–26 (Clarendon Press).Google Scholar
Finnis, J. (1998) “Public Good: The Specifically Political Common Good in Aquinas.” In George, R.P., ed., Natural Law and Moral Inquiry: Ethics, Metaphysics, and Politics in the Work of Germain Grisez, 174–210 (Georgetown University Press).Google Scholar
Finnis, J. (2011) “Aquinas’ Moral, Political and Legal Philosophy.” Stanford Encyclopedia of Philosophy. http://plato.stanford.edu/entries/aquinas-moral-political/.Google Scholar
Finnis, J. (2011) Natural Law and Natural Rights, 2d ed. (Oxford University Press).Google Scholar
Finnis, J. (2011) Collected Essays. Volumes 1–5 (Oxford University Press).Google Scholar
Hittinger, R. (1987) A Critique of the New Natural Law Theory (Notre Dame University Press).Google Scholar
Horton, J. (2006) “In Defence of Associative Political Obligations: Part One.” Political Studies 54: 427–443.CrossRefGoogle Scholar
Horton, J. (2007) “In Defence of Associative Political Obligations: Part Two.” Political Studies 55: 1–19.CrossRefGoogle Scholar
Murphy, M.C. (2005) “The Common Good.” Review of Metaphysics 59: 133–164.Google Scholar
Pakaluk, M. (2001) “Is the Common Good of Political Society Limited and Instrumental?” Review of Metaphysics 55: 57–94.Google Scholar
Rawls, J. (1971) A Theory of Justice (Harvard University Press).CrossRefGoogle Scholar
Horton, J. (1993) Political Liberalism (Columbia University Press).Google Scholar
Horton, J. (1999) The Law of Peoples (Harvard University Press).Google Scholar
Raz, J. (1986) The Morality of Freedom (Clarendon Press).Google Scholar
Raz, J. (1994) Ethics in the Public Domain: Essays in the Morality of Law and Politics (Clarendon Press).Google Scholar
Raz, J. (2009) Between Authority and Interpretation (Oxford University Press).CrossRefGoogle Scholar
Simmons, A.J. (2001) Justification and Legitimacy: Essays on Rights and Obligations (Cambridge University Press).Google Scholar
Walzer, M. (1994) Thick and Thin: Moral Argument at Home and Abroad (Notre Dame Press).CrossRefGoogle Scholar
Westerman, P. (1998) The Disintegration of Natural Law Theory (Leiden: Brill Studies in Intellectual History).Google Scholar
Wolff, R.P. (1970) In Defence of Anarchism (Harper and Row).Google Scholar