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Published online by Cambridge University Press: 01 December 2007
John Finnis's powerfully and deservedly influential modern classic, Natural Law and Natural Rights, expounds a theory of law and morality that is based on a picture of “persons” using practical reason to pursue certain “basic goods.” While devoting much attention to practical reason and to the goods, however, Finnis says little about the nature of personhood. This relative inattention to what “persons” are creates a risk—one that Finnis himself notices—of assuming or importing an inadequate anthropology. This essay suggests that the “new natural law” developed by Finnis suffers in places from the inadvertent adoption of (or, more likely, acquiescence in) a flawed anthropology—an anthropology under the thrall of modern individualistic commitments. To explain this suspicion, this article discusses three difficulties (or so they seem to me) in his natural law theory: difficulties in accounting for the basic good of friendship, for obligations we owe to others, and for legal authority. These difficulties may seem disconnected, but this article suggests that they may all reflect an inadequate anthropology—one that Finnis does not exactly embrace (in fact, I suspect that he would reject it) but that is pervasive today and that in places may affect his theorizing.
1. Or at least it seemed innocuous at the time I wrote a draft of this essay—innocent as I was of the vigorous debates between partisans of “good” and partisans of “good for.” See, e.g., Connie Rosati, Objectivism and Relational Good, 25 Soc. Phil. & Pol'y 314 (2008).
2. John Finnis, Natural Law and Natural Rights (1980).
3. Cf. Charles Taylor, Sources of the Self (1989), at 3: “Selfhood and the good, or in another way selfhood and morality, turn out to be inextricably intertwined themes.”
4. For a helpful discussion of the disagreement, see Robert P. George, Natural Law and Human Nature, in Natural Law Theory: Contemporary Essays 31 (Robert P. George ed., 1992).
5. Cf. id. at 34: “As human perfections, ‘basic goods’ belong to human beings, as parts of their nature.”
6. Id. at 37: “Basic reasons for action are simply ends (goods) whose intelligible point can be grasped without the benefit of a deduction or inference by anyone who knows what the terms referring to them signify.”
7. Thus if you look at the table of contents of Finnis, supra note 2, you will see that after two introductory chapters, the book goes directly to the subject of basic goods. There is no chapter explicitly devoted to “persons,” or “human nature,” or “philosophical anthropology.”
8. It would make little sense, for example, to ask whether knowledge or friendship are basic goods for asteroids, not because the answer would be “no,” but because it is not apparent how asteroids could even have “basic goods” at all. So it seems that in order to participate in the sort of inquiries that new natural law theorists undertake, we must understand humans to be real and importantly different from things like asteroids such that statements about “goods” do make sense with respect to us.
9. John Finnis, Fundamentals of Ethics (1984), at 22.
10. See James 1:5–6.
11. See Finnis, supra note 2, at 88, 141–144.
12. Id. at 142.
13. Id. at 143.
14. At the conference, Les Green suggested a formulation that in his view avoids the dilemma. Might not the proper statement, he suggests, be: “It is wonderful that we are friends.” On my view, this formulation does not help. There is no such thing as “wonderfulness in the air”: if a state of affairs is wonderful, it is wonderful to someone. Perhaps to me, but then we are back to the problem of self-serving friendship. Or perhaps to you, but then the question is: Why should I act for your good? See infra notes 15–23 and accompanying text.
15. Finnis, supra note 2, at 106–109.
16. Id. at 107.
17. I do not want to be perceived as accepting this point either. In fact, I do have doubts about both the duty of impartiality and even greater doubts about the requirement of universalizability, but this is not the place to present those doubts.
18. See Immanuel Kant, Groundwork of the Metaphysic of Morals (H.J. Paton trans., Harper & Row 1964) (1785), at 70.
19. See Alan Gewirth, The Community of Rights (1996), at 15–20.
20. For my own criticism of the argument, see Steven D. Smith, Nonsense and Natural Law, in Against the Law 100, 112–114 (Paul F. Campos et al. eds., 1996). For a more careful philosophical presentation, see Richard Joyce, The Myth of Morality (2001), at 91–95, 123–134. In his response to the articles in this symposium, Finnis addresses this challenge carefully and at length; see John Finnis, Grounds of Law and Legal Theory: A Response, 13 Legal Theory 315–344 (2007), but I confess that I remain unable to see how his discussion persuasively answers or explains away the basic difficulty.
21. See Michael J. Perry, The Idea of Human Rights (1998), at 29–32. Perry elaborates on this difficulty in his contribution to this symposium. See Michael J. Perry, Morality and Normativity, 13 Legal Theory 211–255 (2007).
22. See, e.g., Michael P. Zuckert, Launching Liberalism: On Lockean Political Philosophy (2002), at 331–367.
23. Joyce, supra note 20, at 134.
24. See Steven D. Smith, Hart's Onion: The Peeling away of Legal Authority, 16 S. Cal. Interdisc. L.J. 97 (2006).
25. Finnis, supra note 2, at 231–59.
26. The need for coordination, and hence the need for law and legal authority to facilitate such coordination, is not merely an unfortunate consequence of human ineptitude and wickedness. On the contrary, Finnis observes that “the greater the intelligence and skill of a group's members, and the greater their commitment and dedication to common purposes and common good . . . the more authority and regulation may be required, to enable that group to achieve its common purpose, common good.” Id. at 231.
27. Id. at 247.
28. Id. at 248.
29. Id. at 251.
30. Timothy Endicott, The Subsidiarity of Law and the Obligation to Obey, 50 Am. J. Juris. 233 (2005).
31. Steven D. Smith, Cracks in the Coordination Account: A Comment on Endicott, 50 Am. J. Juris. 249 (2005).
32. If we change the hypothetical to confer coercive power on the bystander—he has a stick and might break your windshield if you disobey—the analysis remains the same. We still do not typically think that such a bystander has “legal authority.”
33. I initially surmised that Finnis might regard this bystander as possessing legal authority, but Finnis has corrected this surmise. See Finnis, supra note 20.
34. Steven D. Smith, Radically Subversive Speech and the Authority of Law, 94 Mich. L. Rev. 348 (1995).
35. In Finnis's account, the difference between real and perceived authority seems to dissolve: if people follow someone's directives because they think she has authority, then she has power to provide coordination and hence she does have authority. But in fact we commonly distinguish between real and perceived or apparent authority and between de jure and merely de facto authority. Hence an account that dissolves this distinction seems to depart from our usual understandings of what authority is.
36. Jules Coleman, The Practice of Principle (2001), at 121 (emphasis added). See also R. B. Friedman, On the Concept of Authority in Political Philosophy, in Authority 56, 63 (Joseph Raz ed., 1990): “[W]e describe such situations [of authority] by saying that an order is obeyed or a decision is accepted simply because X gave it or made it.” (quoting R.S. Peters). Scott Shapiro seems to point to a similar notion in discussing the idea of a legal rule's motivational guidance. Scott Shapiro, Law, Morality, and the Guidance of Conduct, 6 Legal Theory 127, 146 (2000): “We can say that an agent is ‘motivationally’ guided by a rule when the agent takes the rule as the sole source of his motivation for conformity, i.e., when he conforms simply because the rule regulated the conduct in question.” Cf. Brian Bix, Jurisprudence: Theory and Context (2d ed. 1999), at 156: “The question is whether the legal status of a command, authorization or prohibition, by itself, without more, adds any moral reason for doing or not doing the action indicated.”
37. William Edmundson observes that “[d]esires, wants, values, interests, needs, pleasures, pains, aims, projects, commitments, intentions, ends, goals, beliefs, and facts—whether singly or in combination—may furnish reasons for action.” William A. Edmundson, When Reasons Obligate (Apr. 19, 2004) (unpublished draft, available at http://law.gsu.edu/wedmundson//Reasons%20Obligate.pdf), at p. 4. All of these items, except perhaps the last one, appear to refer to what I am here calling internalized “principles of action.”
38. See H.L.A. Hart, The Concept of Law (2d ed. 1994) (1961), at 82–83.
39. See generally Smith, supra note 24.
40. Kent Greenawalt observes that “[f]or most of the history of liberal democracies, the dominant theory about why citizens are obligated to obey the law has been social contract.” Kent Greenawalt, Promissory Obligation: The Theme of Social Contract, in Authority 268, 268 (Joseph Raz ed., 1990).
41. Compare, e.g., A. John Simmons, The Duty to Obey and Our Natural Moral Duties, in Is There a Duty to Obey the Law? 91, 118 (2005): “Real citizens in real political communities seldom do anything that can be plausibly described as either a promise to obey or any other kind of freely made commitment to comply with domestic laws”; with Mark C. Murphy, Surrender of Judgment and the Consent Theory of Political Authority, in The Duty to Obey the Law 319, 320 (William A. Edmundson ed., 1999) (proposing a “refurbished” consent theory to overcome the standard objections).
42. Cf. Michael White, The Disappearance of Natural Authority and the Elusiveness of Nonnatural Authority, in Civilizing Authority, (Patrick Brennan ed. forthcoming), at 16: “So, if something remains within this world-view that we wish to call ‘authority,’ it must be quite different from authority as we usually conceive of it.”
43. Simmons, supra note 41, at 94–95.
44. An extension is required to apply Simmons's observation to reasons based on promises, it seems; that is because although the content of the promise is contingent, the promise by hypothesis does refer to the law or the government. The obligations not to murder, steal, or defraud, by contrast, need make no reference to the law at all.
45. Cf. Alasdair MacIntyre, Some Enlightenment Projects Reconsidered, in 2 Ethics and Politics: Selected Essays 175 (2006):
[P]ublic reasoning always occurs in a local context as part of a set of conversations that have their own peculiar history. We reason not just in the company of others, but in the company of particular others, with whom at any given time we will share some set of background presuppositions.
46. For overviews of this development, see J.B. Schneewind, The Invention of Autonomy: A History of Modern Moral Philosophy (1998); Louis Dupre, Passage to Modernity: An Essay in the Hermeneutics of Nature and Culture (1993), esp. chs. 4 and 5. Though the commitment to autonomy is strongly associated with Kant, it is hardly limited to his views. Gerald Dworkin explains that the “view of the moral agent as necessarily autonomous” is “a philosophical view that is shared by moral philosophers as divergent as Kant, Kierkegaard, Nietzsche, Royce, Hare, Popper, Sartre, and Wolff.” Gerald Dworkin, The Theory and Practice of Autonomy (1988), at 34.
47. Joseph Raz, The Authority of Law (1979), at 3.
48. See Robert Paul Wolff, In Defense of Anarchism (1998) (1970) Id. at 71–72:
It is out of the question to give up the commitment to autonomy. . . . When I place myself in the hands of another, and permit him to determine the principles by which I shall guide my behavior, I repudiate the freedom and reason which give me dignity. I am then guilty of what Kant might have called the sin of willful heteronomy.
49. Id. at 14.
50. For a helpful discussion, see Neil MacCormick, The Concept of Law and The Concept of Law, in The Autonomy of Law 163, 181–185 (Robert P. George ed., 1996). MacCormick concludes that “[1]aw may then engage our autonomous assent, but in its own character it is relatively, if not absolutely, heteronomous.” Id. at 185.
51. Wolff, supra note 48, at 19. See also id. at 18:
The defining mark of the state is authority, the right to rule. The primary obligation of man is autonomy, the refusal to be ruled. It would seem, then, that there can be no resolution of the conflict between the autonomy of the individual and the putative authority of the state. Insofar as a man fulfills his obligation to make himself the author of his decisions, he will resist the state's claim to have authority over him. That is to say, he will deny that he has a duty to obey the laws of the state simply because they are the laws.
52. See supra note 46 and accompanying text.
53. In this vein, Heidi Hurd explains a variety of considerations that make it “generally appropriate, indeed, generally obligatory, to comport one's conduct in accordance with social and legal rules.” But “[n]one of these considerations gives us a reason to follow the law because it's the law.” Heidi Hurd, Why You Should Be a Law-Abiding Anarchist (Except When You Shouldn't), 42 San Diego L. Rev. 75, 80–81 (2005).
54. Finnis, supra note 2, at 359.
55. See id. at 359–361.
56. Among other reasons, just laws may command what we have an independent moral obligation to do anyway. Consider, for example, laws prohibiting murder, rape, or theft.
57. Hannah Arendt, What Was Authority? in I Authority: Nomos 81, 81–82 (Carl J. Friedrich ed., 1958).
[T]he moment we begin to talk and think about authority, after all one of the central concepts of political thought, it is as though we were caught in a maze of abstractions, metaphors, and figures of speech in which everything can be taken and mistaken for something else, because we have no reality, either in history or in everyday experience, to which we can unanimously appeal.
Id. at 105.
58. Quoted in Friedman, supra note 36, at 57.
59. See, e.g., White, supra note 42, at 3: “An enduring problem concerning authority for us post-Enlightenment moderns, it seems to me, is that natural authority has largely disappeared from our most common world-views.” R.B. Friedman observes that the claim “that the very concept of authority has been corrupted or even lost in the modern world” is “an opinion frequently expressed in some of the most well-known discussions of authority in recent years.” Friedman, supra note 36, at 56.
60. Arendt, supra note 57, at 112.
61. R.B. Friedman observes that “authority is a notion intimately bound up with most, if not all, of the central questions of political philosophy.” Friedman, supra note 36, at 56.
62. Similarly, following the coach's instructions is arguably an essential part of what it means to be a player on a team. One is not a freestanding quarterback, or center fielder, or goalkeeper; one can claim these identities or positions only by being part of a team, and the meaning of these positions is constituted by their role in and relationship to the team and the sport. One role within a team and sport is typically that of “coach,” and that role by its nature involves instructing the players on what to do. It would make no sense to ask, say, whether coaches should be given the right to direct their teams: without such authority one would not be a coach. Conversely, insofar as you are a player on a team, the coach's instructions are more than just facts that may happen to bear upon desires or objectives that you already and independently have. Rather, following such instructions is part of the essential meaning of being a player on a team.
63. Cf. Leslie Green, The Authority of the State 195 (1990): “So long as the concept of good citizenship remains a complex and contested one, political argument will infect every level of inquiry.”
64. Wolff, supra note 48, at 14.
65. I should emphasize at the outset of this part of the discussion that I have not worked out a conception of persons-as-relational and I am not sure that I would be at all attracted to such a conception if it were fully worked out. So what follows is meant to be merely suggestive of how a more relational understanding of persons might help with the difficulties we have been noticing.
66. Taylor, supra note 3, at 38–39.
67. Quoted in Colin E. Gunton, The One, the Three and the Many (1993), at 45.
68. John MacMurray, Persons in Relation (1999) (1961), at 61. See also Gunton, supra note 67, at 169 (asserting that “persons mutually constitute each other, make each other what they are”).
69. Aristotle, III Nicomachean Ethics ch. 3.
70. Id. at Bk. IX, ch. 4.
71. Finnis, supra note 2, at 143–144 (emphasis added).
72. This commitment—or better, perhaps, this loose and often bickering family of commitments—seems to me to be conspicuous and undeniable; see supra note 46, even if its precise content is elusive. See Green, supra note 63, at 191–192 (noting that the “individualism in a social theory may be manifest in different forms,” including “ontological,” “methodological,” and “ethical” versions). Michael Sandel argues that the liberal thought associated with John Rawls “presuppose[s] a certain picture of the person” that Sandel describes as “the unencumbered self.” Among other things, this conception of the self, though allowing for “community in the cooperative sense,” rules out the possibility of “constitutive” community that “would engage the identity as well as the interests of the participants.” Michael J. Sandel, Public Philosophy (2005), at 162–163. But Sandel's interpretation is contested. Thus it is familiar to observe partisans of “liberalism” protesting that “communitarian” critics like Sandel have misunderstood their individualistic commitments or assumptions; see, e.g., John Rawls, Political Liberalism (1996), at 26–27; and it is familiar as well for friends of tradition or religion to protest that the modern partisans of rationalistic individualism have misunderstood or misdescribed their views; see Steven D. Smith, Separation as a Tradition, 18 J.L. & Pol. 215, 241–252 (2002). Such disputes make it unlikely that one could set forth in uncontroversial terms just what the modern commitments to individualism or autonomy consist of. For present purposes, though, the limited point is that modern theorizing has operated upon an intellectual landscape significantly shaped by themes of individualism and autonomy; there is no need to try to specify exactly what the content of such themes is or to decide whether there is a coherent or meaningful way to sort out and separate the partisans of autonomy from those who supposedly do not embrace it.
73. These questions are meant to be genuine, not rhetorical. It may be that we are usefully thought of as partial or potential protopersons who aspire to become full persons and whose choices in our protostate help to shape the realization of the more complete persons that we may (or may not?) ultimately become.
74. For opposing arguments, see, e.g., Peter Singer, Famine, Affluence, and Morality, 1 Phil. & Pub. Aff. 229 (1972); Richard Miller, Beneficence, Duty and Distance, 32 Phil. & Pub. Aff. 357 (2004); Samuel Schiffler, Human Morality (1992), at 115–132.
75. See Finnis, supra note 2, at 108.
76. Cf. Arendt, supra note 57, at 82 (asserting that authority is “always hierarchical”).
77. Aristotle, supra note 69, at Bk. VIII, ch. 7.
78. Id. at Bk. VIII, ch. 9.
79. See, e.g., White, supra note 42.
80. Green, supra note 63, at 195–200, 209–215.
81. Id. at 214.
82. Id. at 214–215.
83. See Robert Filmer, Patriarcha and Other Writings (Johann P. Sommerville ed., 1991).
84. See especially Finnis, supra note 9.
85. See John Finnis, Moral Absolutes: Tradition, Revision, and Truth (1991).
86. Finnis does insist, however, that depending among other things on their individual “capacities, circumstances, and even . . . tastes,” different individuals properly realize these goods in different forms and combinations. Finnis, supra note 2, at 105. Indeed, his emphasis on the freedom for such individual variations is, for me, a powerfully attractive feature of his position.
87. See id. at 95–97.
