CARAMAZANA, Susana.

Prof Ksenia Bakina

JURISPRUDENCE MID TERM ASSIGNMENT

‘In comparison with classical natural law, John Finnis’s theory is far less susceptible to

positivist criticism and is better able to debunk positivism.’ Discuss.

The Oxford professor John Finnis has been celebrated, if a little exaggeratedly,

as the father or modern natural law. After a period of clear dominance and popularity of

legal positivism led by Bentham’s fierce attacks on natural law in a context influenced

by the challenges of science and religious thoughts, the Nazi experience in particular

motivated a ‘rebirth’ of natural law theory. And, undeniably, Finnis played a major role

in its rehabilitation. Consequently, such situation has created new grounds for debates

between modern legal theorists.

Firstly, I will briefly introduce Finnis’ modern natural legal theory to argue how

it is indeed less susceptible to positivist criticism in comparison with the pre modern

natural law thinkers’ theories. To continue, I will however explain that it is not in a

better position to knock down legal positivism, and that in reality, its aim is not to

debunk it in the literal sense of the word, but to criticise it for its complete disregard of

moral standards in its merely descriptive analysis of a legal system. I will conclude by

defending how in fact, John Finnis’ theory will allow a compatibility between both legal

theories, thus, in my opinion, proving overall more satisfying in so far as it provides

wider, more complete and coherent explanations.

We trace classical natural law back to the ancient Greeks as a theory that can be

described as ‘an unwritten law which is superior to and is the measure of man-made law
CARAMAZANA, Susana. Prof Ksenia Bakina

[…] a sort of a priori intuitive knowledge of objective moral values […] and an

objective standard of right and wrong of the individual conscience1’. It considers higher

laws and the connections between morality, the universe and human nature.

Accordingly, natural law offers a moral philosophy that deals with an explanation of

what law’s substance should and ought to be, rather than a normative legal theory

promoted by legal positivists which explains the characteristics of what law actually is.

John Finnis follows on from the classical natural legal thinkers, in particular

from Aristotle and Aquinas, and elaborates a classical law theory based on the purpose

of law, which he says should be to further the flourishing of human good.

However, the fact that Finnis will revive natural law theory on a basis that it

doesn’t invoke directly religious believes as a central ground, thus improving on the

archaic, badly-seen, common classical natural law ideas of Deities, Plato’s Forms,

Aristotle’s telos, or Aquinas’s God, will in principle appeal also to secular readers, in its

great majority positivists. Furthermore, he builds his theory on clarifying the claims of

natural law and finally in correcting the ways in which natural law has been

misunderstood and mischaracterized by posterior critics. This, as we will see, will

ultimately make his theory more acceptable and appealing to positivists, hence

rendering it less susceptible to criticisms compared to the classical natural law theories.

He does this by identifying seven self-evident, equally fundamental and

incommensurable basic goods that he explains, we can attain through a process of

practical reasonableness. The application of the nine principles of practical

reasonableness which he sets up will guide us as to what action needs to be taken in

order to enact laws that actually further the goods of humankind. They will therefore

1 Michael Bertram Crowe, The Changing Profile of the natual Law 6 (1977)
CARAMAZANA, Susana. Prof Ksenia Bakina

help us distinguish between reasonable and unreasonable actions within the legal

system.

Finnis was concerned with the focal meaning of law as being law’s central case,

which he defined as ‘rules made in accordance with other rules by a determinative and

effective authority for a complete community that furthers these seven goods, supported

by sanctions, in accordance with the rule guided stipulations of adjudicative

institutions.2’ On this basis, Finnis then vindicates that the law is aimed at resolving

community’s problems, minimization of arbitrariness and maintenance of a quality of

reciprocity between the subjects of law. The fact of the ‘common good of the complete

community’ element emphasises Finnis’ natural law’s position, contrary to legal

positivists such as Austin or Hart. However, his definition of the focal meaning of law

suggests that he accepts to some extent a positivistic account of law. It is in this sense

that Finnis can be described as a ‘soft’ natural law theorist, and that it makes him less

susceptible to positivists criticism. Actually, Hart himself came to treat Finnis’ legal

theory as ‘in many respects complementary to rather than a rival of positivist legal

theory3’. Moreover, Neil MacCormick too gave a similar assertion4.

In effect, we can say that it is because Finnis is not concerned with the validity

of the law (he doesn’t really try to answer the question of what law is as such) but with

the purpose, which should be to further the flourishing of human goods through the

process of practical reasonableness, that we can say he avoids a clash with legal

positivists, hence allowing natural law to be ultimately seen as complementary. For

example, we can have an understanding of what law is, following Austin’s example: a

2 John Finnis, Natural Law and Natural Rights, (276-7).

Press, 1992) 105-33.

command made by the sovereign and backed up by sanction, and at the same time

explain what law ought to achieve: the seven goods of human flourishing.

In addition, we can find similarities in Finnis’ theory with some positivist

theories. For example, both Hart and Finnis recognise that a legal system is a system of

rules made in accordance to other rules.

It is Finnis’ method of analysis, which differentiates him from most earlier

natural law thinkers, that primarily make Finnis be less vulnerable to attacks by legal

positivists. As Cotterrell argues, the approach to deduce what morally ought to be from

speculation of what law is has been bypassed by Finnis by reasoning with what is ‘self-

evident’. It is this attempt to avoid the derivation of ‘ought’ from ‘is’ which marks a

methodological advance over many other expositions of natural law5.

However, notwithstanding resonances with legal positivists, and the alleged

compatibility between both theories, which makes John Finnis’ theory becomes less

susceptible of criticisms, it does not mean it becomes extent from them. Indeed,

differences will still arise and must not be disregarded. Hart makes a merely descriptive

claim of his Rule of Recognition, detached in its large to moral values, whereas Finnis

endorses this mode of recognition of rules ultimately on the basis of a valued

judgement, namely that it helps securing the common good. Consequently, there is still

a methodological difference between them. We can find the same argument with

Austin’s theory of sanctions as a key element of the concept of law, which he shares

with Finnis, but whom unlike him claims is not a morally evaluative basis but a

descriptive claim.

5 Roger Cotorrell, The Politics of Jurisprudence, Oxford Univ Press 2003, 140-141
CARAMAZANA, Susana. Prof Ksenia Bakina

Does this all point to Finnis’ theory being in a better position to debunk legal

positivism? Classical natural law theorists and legal positivists have always been

opponents, building their theories on each other’s criticisms. Accordingly, Finnis claims

that a theory of law simply cannot be a purely descriptive theory. He argues that if

theorists were to simply pick everything they see in an unselective way, this would

result not in a theory but ‘in a vast rubbish ship of miscellaneous fact described in a

multitude of interminable terminology6’. He will call legal positivism an ‘incoherent

intellectual enterprise which sets itself an explanatory task which it makes itself

incapable of carrying through7’. Law therefore has to be understood by reference to its

purpose, and with a primarily focus on a moral attitude. Furthermore, Finnis’ notion of

a central case suggests that there is a question of degree. That something can be closer

or further to the ideal of law. This, we see he contrasts with Austin’s idea of law as an

all or nothing concept with clear boundaries. He criticised that the attempt to find the

most minimal common denominator is likely to result in a very thin account of law and

to provide an impoverished picture of law.

To conclude, we can therefore see that Finnis is obviously not fond of legal

positivism and does criticise it. However, as Bix puts it, in this broad tradition of

confrontations between both theories, ‘Finnis occupies a somewhat controversial and

arguably outsider’s position8’ as ‘Finnis included, has concluded that the two schools

of thought may be compatible9’. And I agree. In my opinion, Finnis is not in a better

position to debunk legal positivism, because he does not want to debunk it overall, as he

believes it to be beneficial if analysed together with classical natural law. The line being

6 ibid, at (2)
7 John Finnis, On the Incoherence of Legal Positivistm, 75 Notre Dame 1999
8 Brian Bix, On the Dividing Line Bettween Natural Law Theory and Legal Positivism, Notre Dame LR2000, pg1613
9 Ibid, above.
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crossed is only one about separating law and morality, as the latter one is important in

establishing what the law ought to be. But that insofar as natural law explains the

purpose of law, and positive law describes its legal validity, they are compatible. And

natural law theory therefore seems to be adjunct to positivist analytical jurisprudence. In

this manner, Finnis’ theory provides for a wider and much richer interpretation of law,

that enables the combination of both schools of thought, which shifts the focus from a

combat to a constructive result.