Natural Law and Natural Rights

Natural Law and Natural Rights (1980; second edition 2011) is a book by John Finnis first
published by Oxford University Press, as part of the Clarendon Law Series. Finnis develops a
philosophy of Law in the tradition of Aristotle and Thomas Aquinas – Natural Law.  His
presentation and defence of Natural Law can be explored from three perspectives. First,
polemical, by contradistinction with other philosophies of Law.  Second, through its
particular methodology, based on practical reasoning.  Third, through its substantive
content in the form of basic human goods.  This article offers a brief overview of each of
these perspectives. In addition, his 2011 edition included an extensive Postcript, which is
briefly discussed in the 4th Section. A brief appraisal of the book is included in the final
section.

Polemical

Finnis critiques a number of authors and philosophical traditions, thereby offering polemical
support for his conception of Natural Law. An illustration of this (by no means exhaustive)
follows below.

Consequentialism (and utilitarianism). Finnis argues that consequentialist arguments are

frustrated by the impossibility of double-guessing consequences and the impossibility of
maximising incommensurable ends and choices.

David Hume.  Finnis acknowledges the validity of Hume's critique of Samuel Clarke's
Natural Law on the basis that it derives moral obligations (“ought”) from the fact of things
or actions being “good” (“is”).  However, Finnis claims that this is not applicable to his
own version of Natural Law where the moral obligation (“ought”) and its “goodness”
derive from practical reasoning.

Francisco Suarez.  Finnis criticises Suarez for misinterpreting Aquinas by, among other
things, adopting a “rationalist” view of Natural Law focused on the (presumed) ability of
the intellect to recognise whether a given choice accords with human nature or not.

H. L. A. Hart.  Hart was Finnis’ PhD supervisor and the force behind his writing the book. 
However, he regrets that Hart's The concept of Law[1] refuses to engage with moral
content and fails to recognise moral purpose in legal punishment (as opposed to mere
vindictiveness).
 Immanuel Kant.  Finnis argues that Kant
reduces human nature to practical Natural Law and Natural Rights
reason devoid of moral content.

John Rawls: Finnis argues that Rawls’

original position in A Theory of Justice[2]
excludes the possibility of adopting
positions as matter of principle, e.g.,
including positions that might clash with
those of others. The result is an
impoverished view of human flourishing.

Joseph Raz.  Finnis corrects Raz's

Practical Reason and Norms[3]'s
misinterpretation of his Natural Law.
Cover of the first edition
Robert Nozick: Finnis argues against
Nozick's notion of coercive State (in Author John Finnis
Anarchy, State and Utopia[4]) noting that
Country United Kingdom
individuals (and not only the State) owe
a duty of distributive justice to other Language English
individuals.
Series Clarendon Law
Plato.  Finnis attributes to Plato the Series

origin of Natural Law conceptions,

Subjects Natural law
further developed by Aristotle and Natural rights
Aquinas.  This includes a contemplative
notion of man's relation to the divine. Publisher Oxford University
Yet, Finnis critiques communistic Press
conceptions of human society based on
Publication date 1980
Plato's Republic[5] because they
overlook the importance of human Media type Print (Hardcover and
commitment. He distinguishes such Paperback)

notions from subsidiarity.

Pages 500 (2011, 2nd
Ronald Dworkin.  Finnis critiques edition)

Dworkin for emptying the legal ISBN 0199599149

institution of moral content.

Among others, Finnis critiques Thomas Hobbes, Jeremy Bentham, and both critiques and
praises, John Austin, W.N. Hohfeld and Max Weber. Whilst following them, he also notes
substantive limitations in Aquinas’ and Aristotle's accounts of Natural Law.

Methodology

The methodology that gives rise to Finnis's conception of Natural Law is based on practical
reasoning or reasonableness.  For Finnis, practical reasoning is the making of choices about
the kind of life that we want to live.  Such choices are guided through participation in
(through a natural apprehension of), and (subsequent) reflection on, the basic goods (listed
in the next section).  Choices, and acts that follow from such choices, may prioritise some
basic goods over others but cannot overlook any of them, or involve arbitrary preferences
among persons – such arbitrariness is avoided through a benevolent impartial judgment (as
distinguished from the ‘veil of ignorance') - and will seek the good of the whole community
or common good. The common good includes distributive and commutative obligations of
justice to others. Morality is practical reasoning which makes life worth living by respecting
these conditions,

This same logic applies to the making of laws.  However, like day-to-day choices, the
making of laws, may on a peremptory basis be guided by more immediate reasons.  Yet,
such reasons will be ultimately grounded in practical reasoning, and this will reveal itself
now and then in legal argumentation, as it does in the effort of individuals to explain their
choices. 

However, there may be laws (as human choices more generally) that do not take account of
all the conditions of practical reasoning described above.  Thereby, they lose their moral
authority since individuals will be inclined to disregard them as not satisfying their own
understanding of a good life. Nevertheless, such laws remain legally binding through the
enforcement procedures provided by the legal system and through their importance for
peaceful coexistence.  Through the junction of legal and moral, Natural Law becomes the
focal meaning of law.

Practical reasoning ultimately is insufficient to give us certainty that our choices are worth
making.  Thus, we tend to assume metaphysical justifications, which point to some external
state of affairs D.  This D is God.

Incidentally, Finnis argues that people should not despair from failing in their life goals,
provided they have participated in the basic goods.
Basic Goods

The list of basic forms of human good or basic goods is as follows:

practical reasoning or reasonableness, as described above;

life, including the procreation of children;

knowledge, meaning the desire to know truth from confusion;

play, as an activity that is absorbing but has no utility beyond the participation in the
activity itself;

aesthetic experience, that is, beauty in things or actions;

sociability (friendship), involving commitment to the interests and well-being of others;

religion, which concerns the metaphysical (as described above); and

marriage, added in the Postcript.

The basic goods are distinguished from virtues, which are ways of pursuing the basic
goods.

Postcript

The Postcript systematically reviews all the arguments in the book, expanding and clarifying
them by reference to Finnis' other writings. It is significant that in p. 425, Finnis notes that
"the book has significant weaknesses. But its main purposes and main positions remain
intact." Some issues discussed in the Poscript are noted below.

The good of the person is the unifying theme for all basic goods.

Marriage is a basic good, because it is a multiple source of human flourishing.

The basic good of play indicates excellence in work or play.

Finnis notes that, in his later writings, "aesthetic experience" is included in the basic good
of knowledge. In addition, religion is redefined as "harmony with the widest reaches and
most ultimate source of all reality, including meaning and value." (p. 448) He argues that
his account of what can be rationally said about God is too limited (and it is further
explored by Aquinas).

Friendship includes "fellow-feeling among human persons." (p. 457)

 Finnis suggests that his amended list of basic goods is likely to be complete.

There is priority among the basic goods. Life is a precondition of the others and practical
reasonableness structures the pursuit and realization of the other basic goods.

Incommensurability applies between basic goods, as well as within each basic good and
between persons.

"Social justice" (Quadragesimo Anno) replaces Cajetan's legal justice, standing in

addition to distributive and commutative justice. Social justice tends to unity by begging
of individuals the question "to which community do I really belong in a contest of
allegiances?" (p. 462).

The common good is the outcome of pursuit of the basic goods (especially friendship,
which leads to cooperation). It can be enforced by the State when conceived as a "public
good".

General comments on the book

The book is written as a collection of essays on a wide range of topics guided by an overall
theme, though this may not become fully apparent until the end.  The essays are partly
descriptive and partly polemical. The arguments are elaborated in excruciating detail, which
makes the book, at times, an arduous read.  The breadth of subjects and viewpoints delivers
a compendium of jurisprudential knowledge, as well as a substantive presentation and
defence of the notion of Natural Law.  

References
1. Hart, H. L. A. (2015). The concept of law (http://worldcat.org/oclc/1008630887) . Oxford
University Press. ISBN 978-0-19-181137-1. OCLC 1008630887 (https://www.worldcat.org/oclc/1
008630887) .

2. Rawls, John (2005). A theory of justice (http://worldcat.org/oclc/474723683) . Harvard

University Press. ISBN 0-674-01772-2. OCLC 474723683 (https://www.worldcat.org/oclc/47472
3683) .

3. Raz, Joseph (2002). Practical reason and norms (http://worldcat.org/oclc/222866548) .

Oxford University Press. ISBN 0-19-826834-3. OCLC 222866548 (https://www.worldcat.org/oc
lc/222866548) .

4. Nozick, Robert, Anarchy, state, and utopia (http://worldcat.org/oclc/1057550775) , ISBN 978-

 1-5491-2175-3, OCLC 1057550775 (https://www.worldcat.org/oclc/1057550775) , retrieved
22 November 2022

5. Plato. Republic (http://worldcat.org/oclc/1330547126) . ISBN 978-0-00-848008-0.

OCLC 1330547126 (https://www.worldcat.org/oclc/1330547126) .