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Lecture 10. Modern Natural Law- Finnis
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Reading - C, ch.5; PSN, 67-71Lecture 9. Modern Natural Law: Finnis
Introduction
- Some biographical background:
Born in 1940 in Australia.
A contemporary legal philosopher and exponent of natural law theory.
A practicing Catholic.
After completing his LLB in Australia (Adelaide ), awarded a Rhodes scholarship to study at
University College, Oxford. Obtained his doctorate there under the supervision of HLA Hart.
Spent most of his career at Oxford
His magnum opus: Natural Law and Natural Rights (hereafter: ‘NLNR’)
- Finnis undertook the project of restating and reviving natural law theory. He seeks to do that, inter
alia, by
(i) grounding natural law theory in a foundation that doesn’t invoke directly religious beliefs (at
least not as its primary and central ground); and
(ii) elucidating the claims of natural law theory and correcting the ways in which (in his view) it
has been misunderstood and mischaracterized by critics.
Methodology
- The need for evaluation
A theory of law cannot be a purely descriptive theory: ‘[T]here is no escaping the theoretical
requirement that a judgment of significance and importance must be made if theory is to be
more than a vast rubbish heap of miscellaneous facts described in a multitude of
incommensurable terminologies’ (NLNR, 17)
A distinction between the focal meaning of law (aka, the central case of law) and peripheral
meanings/cases of law.
- We must understand law by reference to its point: ‘The actions, practices, etc., can be fully
understood only by understanding their point, that is to say their objective, their value, their
significance or importance …’ (NLNR, 3)
- The viewpoint from which we should assess significance and importance, and differentiate central
and peripheral cases of law: The internal point of view: ‘[The theorist] must assess importance or
significance in similarities and differences within his subject-matter by asking what would be
considered important or significant in that field by those whose concerns, decisions, and activities
create or constitute the subject-matter. (NLNR, 12, emphasis added)’
- What type of ‘internal point of view’ should the theorist assume? However, not just any instance of
the internal point of view, but what he considers to be the central case of the internal point of view,
i.e. a morally committed attitude: ‘If there is a point of view in which legal obligation is treated as at
least presumptively a moral obligation – or presumptive requirement of practical reasonableness – a
point of view in which the establishment and maintenance of legal (as distinct from discretionary or
statically customary) order is regarded as a moral ideal if not a compelling demand of justice, then
such a viewpoint will constitute the central cases of the legal viewpoint’ (NLNR, 14-15)
The basic human goods
- The original list: life, knowledge, play, aesthetic experience, sociability or friendship, practical
reasonableness, and religion.1
- Over the years Finnis made some revisions to this list. Thus, in one essay he lists:
(1) knowledge (including aesthetic appreciation) of reality;
(2) skilful performance, in work and play, for its own sake;
(3) bodily life and the component aspects of its fullness, viz. health, vigour and safety;
(4) friendship or harmony and association between persons in its various forms and strengths;
(5) the sexual association of a man and a woman which … should be acknowledged to be a distinct
basic human good, call it marriage;
1
‘Religion’ is described as a concern with the questions of how the order of means to ends and human pursuit of
the basic goods is ‘related to the last order of the whole cosmos and to the origin, if any, of that order’ (NLNR,
89); and whether humans freedom, intelligence, and mastery are ‘somehow subordinated to something which
makes … [them] possible… and which is free, intelligent, and sovereign in a way … no being can be’ (ibid).
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