Natural Law- John Finnis Conti…

What constitutes a worthwhile, valuable, desirable life?

- Finnis seeks to persuade readers that there are universal basic values or goods that may be discerned

through practical reason and from which we may derive our moral rules. He argues that all rational

agents set out to preserve or obtain things they perceive to be good for themselves. Humans need to

exercise practical reason to obtain that good at any one time.

- Finnis identifies seven "basic values or goods" in life that are the motivation and goal of action. He

argues that these goods are self-evident and that cannot be reasonably denied.

Seven ‘basic forms of good:

1. Life - The drive for self-preservation we all have.

2. Knowledge - It is a good in itself to be well-informed rather than ignorant or muddled

3. Play - Recreation, enjoyment, fun.

4. Aesthetic experience - An appreciation of beauty in art or nature.

5. Sociability (friendship) - Acting in the interests of one’s friends.

6. Practical reasonableness - Employing one’s intelligence to solve problems of deciding what to do, how

to live, and shaping one’s character.

7. ‘Religion’ - This refers to our concern about an order of things that transcends our individual interests.

There is a sense of the responsibility of human beings to some greater order than that of their own

individuality.
- These are basic and universal because goods because:

(a) They are self-evidently good;

(b) They cannot analytically be reduced to being a part of some other value or to being instrumental to the

pursuit of any other; and

(c) Each one, when we focus on it, may seem the most important

What makes something self-evident?

- What is self-evident must be evident to all reasonable people without the help of anything outside of

itself
- A value is not self-evident simply because one has a feeling of certitude about it, great and intelligent
persons think so, or most people are inclined to participate in or desire that- it is obvious to anyone
who has experience of inquiry into matters of fact or of theoretical judgment
- Finnis’ basic values are not rules of behaviour. They are the values from which moral rules can be

drawn.

- According to Finnis, if values are not shared there can be no social rules. Social rules cannot arise

without some notion of common good. Why do we need common good?

- If each person seeks to pursue the basic values in disregard of others, there will be no harmony and no

cohabitation

But how do we move from values to social rules? Further, if basic values are everywhere and

always the same, why do moral rules differ from place to place and from time to time?

- According to Finnis, the basic values form the ‘evaluative substratum of moral judgment’ or the ‘pre-

moral principles of natural law’.

- The (moral) natural law is derived from these values by the observance of practical reasonableness,

which, of itself, is a basic good

- The importance of practical reasonableness lies in the facts that:

(a) All basic values are worth pursuing;

(b) (b) Life is too short to enable us to pursue each and every value to the maximum extent.

- The requirements of practical reasonableness are:

1. The good of practical reasonableness structures the pursuit of goods. It shapes one’s participation in

the other basic goods, by guiding one’s selection of projects, one’s commitments, and what one does

in order to carry them out.

2. A coherent plan of life. One ought to have a harmonious set of purposes as effective commitments.
3. No arbitrary preference among values. One ought not to omit or unreasonably exclude or exaggerate

any of the basic human values.

4. No arbitrary preference among persons. One should maintain impartiality in regard to others and their

interests

5. Detachment and commitment. One should be both open-minded and committed to one’s projects.

6. The (limited) relevance of consequences: efficiency within reason. One must not squander opportunities

through inefficiency; actions should be reasonably efficient.

7. Respect for every basic value in every act. One should avoid acts that achieve nothing but damage or

impede one or more of the basic forms of human good.

8. The requirements of the common good. One should act to advance the interests of one’s community.
9. Following one’s conscience. One should not do what one feels should not be done.

- The ‘basic forms of good’ and the ‘basic requirements of practical reasonableness’, constitute the

universal and immutable ‘principles of natural law’

Reflection: Finnis’ seventh requirement – namely, having respect for every basic value in every act –

raises certain moral dilemmas. According to Finnis, this requirement means that one should not choose to

do any act which of itself does nothing but damage any one or more of the basic forms of good. This

means that one should not damage a basic good even if the good consequences outweigh the damage.

What about cases such as abortion where keeping the child could endanger the child’s mother or

euthanasia where a patient in a PVS with no prospects of recovery wants to end their life?
What is law?

- Finnis attempted to capture the ‘focal meaning’ of the term’ law’. ‘Focal meaning’ refers to the central

case of the law or the typical form the law takes in a complete community.

- Finnis’ focal meaning definition traverses many aspects of the law and the legal system highlighted in

definitions provided by other thinkers. It refers to

(i) Rules made according to regulative legal rules (Kelsen, Hart) by a determinate and effective authority

for a complete community (Austin).

(ii) It refers to the fact that law is backed by sanctions (Austin, Kelsen, Hart).

(iii) It emphasises that law typically exists where the conditions for the rule of law exist (Fuller).

(iv) It identifies the law’s central purpose as the resolution of the community’s co-ordination problems, and

points to the need for reciprocity between ruler and subject

Does this make Finnis a naturalist or positivist?

- Finnis stated that the tradition of natural law theory is not concerned with the denial of the ‘general

sufficiency of positive sources as solvents of legal problems’ Instead, the concern of the tradition has

been to show that the act of ‘positing the law is an act which can and should be guided by “moral”

principles and rules’

Is there an obligation to obey unjust law?

- Finnis argued that a person asking this question may be using the words ‘obligation to obey the law’ in

any one of four different senses:

1. Empirical liability to sanction in the event of disobedience

- This question is tantamount to asking whether a person will be jailed if he/she disobey the law. This

question is theoretically banal.

2. Legal obligation in the intra-systemic sense

- The question here is whether there is a ‘a legal obligation in the legal sense’. Legal sense means the

obligatoriness of the law derived from the fact that the law satisfies the formal criteria established in the

legal system for recognising obligatory rules. Law in the legal sense regard the morality of the law as

ordinarily irrelevant to its validity.

- Finnis argued that the intra-systemic approach to the question reflects practically reasonable responses

to the need for security and predictability, a need which is indeed a matter of justice and human right

- The separation of the issue of justice from the issue of validity promotes the certainty of the law, which is

a necessary condition of the rule of law

- However, a total separation of law and morality, according to Finnis is not possible
- Further, the test of reasonableness is often a moral test.

- Finnis however conceded that if the highest court has rejected the moral argument and upheld the law,

it is idle to deny the obligatoriness of that law - Such denial would not be conducive to clear thought.

3. Legal obligation in the moral sense

- For some positivists, once a law is obligatory in the intra-systemic sense, the argument is over. Finnis

disagreed.

- He argued that we may rightly inquire of a valid unjust law whether it is also obligatory in a further

sense. We may ask the question: Does a particular unjust law impose upon me any moral obligation to

conform to it?’
- Finnis said that, for the purpose of assessing one’s legal obligation in the moral sense, one is entitled to

discount laws that are unjust - lex injusta non est lex.

- An unjust enactment maybe considered invalid although it maybe ‘obligatory’ in the formal legal sense

4. Moral obligation deriving not from legality but from a collateral source

- Where the constitution and the legal system are considered generally good or desirable, the

disobedience of particular unjust laws may undermine public respect for the system, with probable

harm to the common good.

- Therefore, a moral obligation may arise from this collateral source to obey a law that is not obligatory in

the moral sense.

- The obligation in the fourth sense arises from the desirability of not rendering ineffective the just parts of

the legal order. So, where does this leave us? Should we obey or disobey unjust laws?
- Finnis argues that in such instances, there is no moral requirement to obey the law fully, but only to the

degree that will avoid bringing the law as a whole into contempt

Thoughts?