2 The Nature of Law

John Finnis
....................................................................................................................

Recent work in philosophy of law includes many discussions of law’s

‘nature or essence’, understood as those properties of law that are neces-
sary, or at least important and typical or characteristic of ‘law as such,
wherever it may be found’1 (or that help explain how and why law can be
considered a kind, and laws or legal systems its instances or instanti-
ations). Some hold that law has no nature; only natural objects have a
nature, and law is artefactual, not natural. Others reply that there are kinds
of artefacts: paper clips differ in nature from printer drivers, and being a
soft cheese blob excludes being a paper clip – excludes being something of
that kind or nature. Attention is shifting promisingly to paradigms of
artefact more relevant to law than paper clips are: assertions, for example.2
Discussions of law’s nature need a better inventory of the kinds and
paradigms of description(s), explanation(s), and kind(s) (natures). Consider
the inventory (still improvable) with which Aquinas began his Commentary
on Aristotle’s Ethics.3 It identifies four kinds, or domains, of pattern (ordo)

1
J. Gardner, ‘Law in general’ in J. Gardner, Law as a Leap of Faith: and Other Essays on Law
in General (Oxford University Press, 2012) 270, 279, 301.
2
Exemplars besides Gardner include Raz, ‘The problem about the nature of law’ (1983) in J.
Raz, Ethics in the Public Domain (Oxford University Press, paperback ed. 1995); Raz, ‘On the
nature of law’ (1994/6) and ‘About morality and the nature of law’ (2003) in J. Raz, Between
Authority and Interpretation (Oxford University Press, 2009); F. Schauer, ‘On the nature of
the nature of law’, Archiv für Rechts- und Sozialphilosophie, 98/4 (2012), 457–67; B. Leiter,
‘The demarcation problem in jurisprudence: a new case for skepticism’, Oxford Journal of
Legal Studies 1 (2011) 663–77; essays by Murphy, Flores and Marmor in W. Waluchow and
S. Sciaraffa (eds.), Philosophical Foundations of the Nature of Law (Oxford University Press,
2013); M. Murphy, ‘Two unhappy dilemmas for natural law jurisprudence’, American
Journal of Jurisprudence 60 (2015) 121–41; and L. Burazin, ‘Can there be an Artefactual
Theory of Law?’, Ratio Juris 29 (2016) 385–401.
3
Finnis, Aquinas (1998), 20–3; Natural Law and Natural Rights, 2nd ed. (2011), 136–8, 457;
J. Finnis, ‘Reflections and responses’ in J. Keown and R.P. George (eds.), Reason, Morality,
and Law: The Philosophy of John Finnis (Oxford University Press, 2013), 459–584,
462 n. 14.

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 The Nature of Law 39

and correspondingly of explanatory (analytical and synthesising) descrip-

tion (scientia), each irreducibly distinct though all found in the life and
nature of human persons and their groups.
First domain: patterns (and patterned things or subjects of inquiry) and
systems that are what they are quite independently of our thinking – the
domain of nature, investigated by the natural sciences, in which natural
kinds and natural laws (such as the Second Law of Thermodynamics) are
discerned and experiments are accordingly expected to be replicable in
many times and places.
Second domain: patterns or systems of thought by which we make our
thinking coherent and fruitfully non-fallacious: logical. This is logic, not
just formal or symbolic. Aquinas put linguistic skills and language here, but
they belong more to the fourth domain, artefacts. Assertions, for example:
as linguistic acts of communication, they are artefacts, and could each have
been constructed differently in every detail. Still, they belong to the very
logic of rationality’s and discourse’s intrinsic structures, moving from
questions about givens, through insights as hypotheses about why the
givens are as they are (and thus about what they amount to, or are evidence
of ), to judgements asserting that such and such is (or is not) the case.
Third domain: the order (pattern) one can bring into one’s deliberating
toward acting to attain ends by means in the open horizon of one’s life (as
individual or group). This practical rationality, in its developed forms,
amounts to a morality or ethics of conduct, identifying kinds of choice,
disposition and action as good or bad, right, acceptable or wrong by virtue
of their reasonableness or unreasonableness in that open horizon.
Fourth domain: the kind of pattern one can impose upon matter (stuff,
materials, including one’s bodily parts and operations) with the kind of
means–end practical rationality that concerns making (and working with)
artefacts in the widest usual sense, including arts, crafts and technologies
or techniques including, as just noted, language and its use.
Each of the terms ‘nature’ (‘of this nature’), ‘essence’ (‘essentially’, . . .),
‘kind’ (‘of a different kind’), ‘identity’ (‘identical’, ‘similar’, . . .), and so forth,
is correctly usable in each of the four domains. But the precise meaning of
each shifts, more or less systematically, as its use shifts between domains:
they are analogical terms, neither univocal nor merely equivocal.
Law (understood not as in ‘the Second Law of Thermodynamics’ but as in
this Cambridge Companion’s title, and matching ‘legal/legally’) belongs
within each of the four domains. Thought about its nature must attend to

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 40 John Finnis

this complexity, and avoid describing and explaining law reductively, as if

it pertained essentially to only one (or two, or three) of these domains. The
properties necessary – needed – to constitute law and fully instantiate its
nature include properties in each of the four domains. Deficiencies in a
property in (say) one domain but not the others need not entail that the law
or legal order is so deficient that it is simply not law: loss of limbs does not
leave one non-human; enthymematic argument is argument (albeit weak
and problematic); cowardice need not eliminate all practical reasonableness
and virtue; a vessel unable to tack is still a sailing ship; citizenship
conferring rights to vote but not to be elected is citizenship, but (as with
the other examples) is not a central case of that reality nor the focal
meaning of that term. Deficient, mutant, borderline instances leave intact
the theses that law has a nature, which theories of law describe and explain,
correctly or deficiently and more or less erroneously. Theories should focus
on the central (kinds of ) cases of law, which embody its nature most fully
or adequately, and should locate non-central cases in the subject matter’s
analogical structure, a location settled not by statistical ‘typicality’, but by
each relevant domain’s criteria of good (true) explanation.
This chapter considers law as involved essentially with each of the four
domains. What best explains the features law has, taking all four domains
together, proves to be its (third-domain) character as a response to human
communities’ morally significant need for the kind of access to justice that
only law systematically provides.

1 Law, Nature and History

Laws of nature (such as the Second Law of Thermodynamics, among

countless examples) share some kinds of property with legal philosophy’s
subject matter: they are articulable in general (‘universal’) propositions
about patterns of activity of a kind of physical–biological entity that are to
be expected4 in specifiable kinds of circumstance. Lacking properties of a
legal system that pertain to the other three domains of reality and explan-
ation, however, they are only weakly analogous to the law in this
volume’s title.

4
Here ‘to be expected’ is predictive, not optative, directive or normative (directly action-
guiding).

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 The Nature of Law 41

But before leaving this first domain, we should note that Aquinas’
account again needs amendment, to accommodate historical or socio-
logical knowledge: of facts that are what they are independently of
whether and how we think about them, yet not with the natural necessity
of laws of nature or the replicability of instances of natural kinds, but with
the different necessity which everything that was so in the past has – that
it cannot now be the case that it was not so – and therefore just awaits
discovery, description and explanation. And any account of law’s nature
must attend to this aspect of the first domain. Why?
For one thing, laws must belong to some legal system that exists, in the
sense that it is by and large ‘efficacious’, that is, acknowledged and applied
in practice among very many of those to whom its laws are addressed. The
present tense ‘is’ here implies a reference to the past – the recent past, at
least, and in many cases the past of the decades or centuries of a stable
legal system’s continuous existence as the legal order of a more or less
stably self-constituted people distinct from other peoples. Though the
Roman law promulgated by Justinian in 529–34, and the legal system of
Tsarist Russia, are instances of law, richly illustrative of its nature – and
are discussed today as containing solutions to articulable legal problems
just as if they were efficacious today – they no longer have the nature of
law, in one decisive respect: they in fact no longer are available to secure
justice for anyone.
For another thing, a legal system needs to include many rules and
institutions that belong to it only because they were instituted by some
lawmaking event or process in the past.
Both these properties of law are necessary (needed), in senses and ways
involving the other three domains.

2 Law and the Logic of its Propositions

Law is by its nature the law of a group (community) ruled more or less by
law. The law of a group can be called the community’s legal system or legal
order. In a primary respect, such a system or order is a set of laws, each a
universal proposition. The law, in this respect, is a set of propositions of
law, each stating what legally, according to the group’s law, may not be
done (is prohibited, a duty not to . . .), or may be done (is permitted), or
must be done (is mandatory, required, a duty to . . .); or what, according to

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 42 John Finnis

law, certain or all persons have power (authority, faculty) to do in order to

affect the way the law’s propositions apply to or bear upon what those
persons or others may or may not or must do, or have power to do.
Propositions of law are universal in that they apply to all persons and acts
in the class of persons and class of acts specified by the proposition,
however wide or narrow the classes. A valid legal proposition that picks
out not classes of person (such as ‘the President’) but a particular person
(William K. Brown born 16 September 1943) and particular acts of that
person (his will made 26 June 2011 and codicil made 27 April 2013) is not
a central case of ‘a law’.
In a secondary respect, a legal system is a set of persons, institutions and
practices. Though a legal system as set of propositions can hardly be said
to be (say) flourishing or corrupt, legal systems in this secondary respect do
have such temporal and morally relevant historical properties.
Central to law as a set of propositions is the logic first fully analysed by
Hohfeld.5 A proposition of law specifying that persons of class Y have a
duty not to do acts of class/type A – or a duty to do acts of class/type B –
and either making this specification for the benefit of each person of class/
type X, or specifying that each person of class X (or representative of
those persons) has power to enforce or waive that duty, entails that each
X has (by virtue of that same proposition of law) a right correlative to the
relevant duty – the right that each Y so act/refrain from acting. This
exemplifies the correlativity that, in one kind of way or another, is entailed
by each duty or power specified by a proposition of law valid in a given
legal system. But besides the rights (of X) correlative to the duties (of Y),
there are other rights that (members of class) X might have (by virtue of
some other proposition(s) of law): rights to, or over, things – rights of
property and possession. Of course, such rights to/over things go along
with (not by entailment but by virtue of legal rules) powers (of X) to
transfer those rights to Z, to impose or waive duties (of Y), to refrain from
use of the things, and so forth. And, somewhat similarly, there are rights of
(members of class) X that are neither correlatives nor negations of any
duty, but are (say) ‘to life’ or ‘to private life’ or ‘to free assembly’ and so on.

5
W.N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, Ed. W.W.
Cook (Yale University Press, 1923); J. Finnis, ‘Rights: their logic restated’ in J. Finnis,
Collected Essays of John Finnis [CEJF] (Oxford University Press, 2011, paperback
ed. 2013), Vol. IV (Philosophy of Law), 18.

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 The Nature of Law 43

Such ‘two-term’ rights are linked to duties not by logic but by rules and
decisions of this legal system’s law.
The technical, artefactual, fourth-domain postulate that a legal system is
complete and gapless, in containing a legally correct answer to every
question of conduct within its jurisdiction, makes plausible the thought
that every two-term right can ‘in principle’ be exhaustively stated in the
(vast) set of three-term rights it legally entails. On that postulate, a two-
term right such as to freedom of speech ‘must’ be capable of being
exhaustively stated, for purposes of law, in terms of three-term rights such
as A’s right that B, C, D, . . . not intercept his telephone conversations; A’s
liberty to make telephone calls and B’s, C’s . . . lack of right that he not
make them; A’s power to grant B a contractual liberty to listen to A’s
phone conversations; A’s immunity from B’s acquiring that liberty by any
other source of power . . .; etc., etc.
One specific kind of two-term right is the public power/authority to
make law, primarily to make rules of law, secondarily to make particular
legal rights and duties by issuing a judicial or similar order; comparably,
there are private powers to create rights and duties by contract or other
private law assumptions of obligation. The idea of validity implicit in
statements about the validity of propositions of law draws upon the idea
of logical validity (of argumentation or proof in logic, geometry, etc.). But
its legal sense adds the idea that a proposition has been made true by the
exercise of a public power/authority of lawmaking, or by the exercise of a
private power of contracting, appointment (of agents), creation (of a trust),
and so forth. This legal sense of validity extends further to include other
valid ways of introducing new laws and/or propositions of law into the
legal system by processes of custom formation, estoppel, prescription and
so forth – authoritative processes which do not depend upon or include
any person’s exercise of authority or power to introduce them.6
When propositions of law are made true by such acts or processes, the
validating operation of power-conferring or other rules of recognition
bears, in the first instance, not on the proposition as such but on the
statements uttered in legislative texts authoritatively settled and adopted.
The distinction between a statement, its utterance in a speech or text, and

6
See further M. Köpcke, Legal Validity: The Fabric of Justice (Hart Publishing, 2019); and
A Short History of Legal Validity: Foundations of Private and Public Law (Hart Publishing,
2019).

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 44 John Finnis

the proposition(s) that it expresses (or in some other way conveys), is not
peculiar to legal texts, but is a general feature of the second domain and of
its relationship to the fourth (to which belong languages, as modes of
expression, and other conventional forms, like other artefacts as such). In
legal systems, however, the distinctions, and the problems of interpretation
to which they give rise, are of special importance. For legal systems seek
indirectly and directly – by making true certain very generic propositions of
law about how to interpret legal texts – to regulate both the processes by
which (say) legislative texts become authoritative and the processes and
techniques whereby they thereafter are lawfully interpreted and the
resulting propositions of law applied. Law by its nature is reflexive – seeks
to regulate its own creation, application and interpretation.7
Why that is so, and why the other second-domain features of law above-
mentioned are characteristic of law, becomes clearer when we examine its
third-domain characteristics. But the ineliminable gap between textual
statement and proposition of law is a resultant of the first-domain fact
that human persons cannot communicate with each other by thought
alone (‘mind-reading’ of a non-metaphorical kind), but must share their
thoughts, so far as these can be shared, by more or less bodily signs and
acts of communication. And those acts deploy, and depend almost entirely,
upon the artefacts we call language and its utterance in the further
artefacts and artifices of speech and text. Law by its nature needs to be
published (‘promulgated’), and its publication can always be incomplete or
in some other way incompletely successful in communicating what was
intended and meant to be made true as a matter of law.

3 Law and Pursuing Human Good(s) Reasonably

As actual, law can be understood by asking why existing specimens or

instantiations of it have the kinds of stuff and shape they do. As achievable
kind of reality, law can be understood by considering the features of the
human predicament that make evidently reasonable a kind of response-to-
predicament that has or produces that sort of stuff and shape. Both these
methods of inquiry converge upon a common result (already mentioned): it

7
This was fundamental to H. Kelsen, General Theory of Law and State (Harvard University
Press, 1945), 124, 126, 132, 198, 354.

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 The Nature of Law 45

is law’s third-domain features or elements that most explain the other-

domain features and elements characteristic of it.
For the flourishing of individuals and groups is weakened, damaged or
destroyed by various kinds of danger, and these threats or perils may often
be alleviated or overcome by positive or negative coordination intended to
avert them, coordination and cooperation which in turn can also make
available various kinds of elements in human flourishing that are other-
wise unavailable. Plans for and modalities of cooperation can be brought
into operation and made effective by rules and institutions of law which
make them authoritative and compulsory. Defections from the authorita-
tively required modes of cooperation can be ascertained, assessed and
rectified by legal rules for compensation or punishment, rules applied after
trial according to law. Trial according to law is itself a form of cooperation
oriented toward averting the menace and harm that consists in unjust
deprivation of liberty, property or opportunity, whether by simple lawless
private force and oppression, or by public orders predicated not on true
facts of guilt or liability but on false claims and/or false public adjudi-
cations induced by fear, bribery or other favour.
Recognising with clarity that law’s nature must be described/explained
as a system of institutions and rules for meeting human needs, the central
chapters of Hart’s The Concept of Law (1961) strove nonetheless to present
as non-moral the evaluations implicit in identifying a ‘need’ (or ‘remedying
a defect’). (Hart doubted whether moral propositions can be true.8) Thus he
presented rules and institutions of adjudication as needed for ‘efficiency’ in
resolution of disputes; and presented lawmaking institutions and rules of
change as needed for efficiency in responding to change of circumstances
and/or of ideas about ends and/or means. And in another phase of his
explanation of law, he argued that the only basic need (or basic value or
ultimate end) that such an explanation should postulate is survival
(whether of me or our group, he left in shadow). Although these needs
were presented as the de facto content of an attitude or viewpoint observ-
able among those whose possession of this ‘internal attitude/viewpoint’
makes a set of rules exist, and exist as law, Hart nonetheless plainly
expected readers to share the viewpoint, in relation to whatever legal
system they happened to be (or could realistically imagine being) subjects

8
See Collected Essays, CEJF IV, 254; Raz, Between Authority and Interpretation, 52.

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 46 John Finnis

or officials of. That the philosopher’s account ‘reproduces’9 this internal

attitude (as an attitude of acceptance of rules in the combination of them
distinctive of legal systems) was thus, for Hart, a primary criterion of
sound legal–philosophical/theoretical description and explanation. And
this was indeed progress in the theory of law (Jurisprudence). For it located
law explicitly in the life of practical reason, understanding legal rules as a
distinctive kind of reason for action.
And reasons for action are the matter of the third and fourth domains –
but more fundamentally of the third, since the reasons for being concerned
with that sort of arrangement of means to an end that constitutes a fourth-
domain artefact (technique/technology) are always, in the last analysis,
third-order reasons – reasons to deploy that technique or use that artefact
in some conduct chosen for its contribution to one’s (or one’s group’s)
open-ended life as a whole: that is, morally significant reasons for action.
So Hart’s methodology systematically opened up the inquiry about the
nature of law to that philosophy of practical reasonableness which we call
ethics or moral philosophy or rational morality.
No one is rationally obliged to accept Hart’s implicit proposal to reduce
or limit the explanation of adjudication to considerations of efficiency in
‘dispute-resolution’, as distinct from concern to require impartial (‘judi-
cial’) attention to finding the truth about what wrongs were or were not
done, and fidelity-in-application of the law(s) defining the obligations and
rights of the parties at the time the cause of action (tort or crime or breach
of trust . . .) arose. Such values as truth, honesty and fidelity to past
commitments and expectations cannot be fully explained in terms of
promoting survival, but instead need to be reported as aspects of a concern
for practical reasonableness for its own sake, as an intrinsic human good
just as intrinsic or ‘basic’ as survival in life and health, knowledge for its
own sake, friendship and interpersonal harmony, and the handing on of
life and education in maritally committed procreation and parental nur-
ture. The Concept of Law has a chapter on Justice as willingness to treat
like cases alike and different cases differently, and this justice is obviously
a central aspect or implication of the good of being practically reasonable,
and the good of interpersonal harmony, and the truth about all basic
human goods: that they are as intelligibly good in the lives of other persons

9
H.L.A. Hart, The Concept of Law, 3rd ed. (Oxford University Press, 2012, orig. published
1961), 90.

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 The Nature of Law 47

as in my own. Morality is just another name for a fully reasonable concern

for human flourishing in all its basic aspects, integrally considered (with-
out arbitrary cutting back in attention to basic goods, or to the persons in
whose lives they might be instantiated). So, though Hart’s own study of
law’s nature remained, by restriction, amoral or incompletely moral, his
method invited the unrestricted exploration of the bearing of reasons for
action, as a set, on the making and maintaining of laws, law and legal
systems. That is, his method invited a thorough exploration of law as a
reality or potential reality in the third domain.10
And those third-domain reasons which give law its characteristic
shape and nature are reasons for making it have the character it has as
participating in the first, second and fourth domains of explanation, as
a natural reality governing natural realities (human persons), as a
logical–propositional realm of validity and correlativities of duty, power
and right, and as a complex artefact and technique of signs, institutions
and activities – a positing yielding positive law.
Central to law’s nature is that law links – because a society needs, in
justice, to link – present decisions not simply to achieving future benefits (as
any rational plan does) but also to doing so by honouring past commitments
both public and private. Legislation is a form of public commitment: to deal
with certain matters henceforth in the way that was specified in the law-
making act (constitution, statute, etc.). Adjudication by application of law is
a complex, thorough public acknowledgement (and following through) of
those and comparable (customary, precedential) commitments. Private acts
of undertaking obligations are commitments to act in the ambulatory
present with fidelity to those past acts even when one’s future well-being
might in other respects be enhanced by neglecting those commitments.
So law and the rule of law cannot be reduced to the model of planning.11
For that model includes, perhaps paradigmatically, the activities of sol-
diers, architects and engineers, whose sole concern quite reasonably is
future well-being as it may be enhanced or protected starting from now
with what now lies to hand. Law is planning in (reformable) fidelity to past

10
On these issues in Hart, see J. Finnis, ‘How persistent are Hart’s “persistent questions”?’ in
L.D. d’Almeida, J. Edwards and A. Dolcetti (eds.), Reading H.L.A. Hart’s The Concept of Law
(Hart Publishing, 2013), 227–36 ; CEJF IV, essays 10 and 11.
11
Cf. S. Shapiro, Legality (Harvard University Press, 2011), 194: ‘the law is simply a
sophisticated apparatus for planning in very complex, contentious, and arbitrary commu-
nal settings’.

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 48 John Finnis

enactments and other historical (‘social fact’) sources of law and obligation
or entitlement (acquired rights); the plan was adopted then, and is (pre-
sumptively) to be applied now not so much for its promise of benefit as for
its validity as positive (posited) law (and therefore as political commit-
ment of the community). The fully reasonable premise for acknowledging
positive law as a reason for action now (as judge, administrator or other
subject) is a moral premise: justice as a fundamental aspect of promoting
the common good of my political community presumptively requires me,
in reason, to respect the commitments articulated in the rules, and by the
institutions, of our law.
The principles directing this needed willingness (or summons) to act
justly are traditionally called natural law (synonymously, ‘natural right’).
Principles of natural law – that is, of practical reasonableness uncorrupted
by sub-rational bias or inattention – direct us not only to make all our
choices consistent with various specific principles and norms of justice, but
also to promote and protect these by establishing positive laws and law,
and then by recognising, maintaining and applying the rules of this
positive law according to their tenor – that is, in the meaning established
by their own content and by the content of rules of validity and principles
of interpretation and requirements of coherence with other positive rules of
the system considered as a whole that ought (according to the same
foundational, natural law principles of justice) to be coherent, capable of
application and compliance (and so not retroactive), relatively stable,
intelligible to those whom they concern, and actually adhered to by those
whom this legal system designates as its officers. Where a legal system’s
rules, institutions and practices conform sufficiently to these morally
desirable structural/procedural features, the political community12 they
govern can be said (in the wake of Aristotle’s debate about the matter) to
instantiate the rule of law,13 the primauté de droit.

12
A non-state community can have a legal system in a near focal sense. So Pope Paul III’s
commission of inquiry into the Reformation’s causes reported that some popes (mis-
advised, it said, by ecclesiastical lawyers) ruled like private owners rule over their property,
setting aside the Rule of Law commended in Aristotle’s Politics, and governing the Church
just as they pleased, whence (as from a Trojan horse) came the desperate illnesses infecting
the Church of 1537: Consilium de Emendanda Ecclesia (Rome, Anthony Bladus, 1538),
Aii–iv.
13
See N. Simmonds, Law as a Moral Idea (Oxford University Press, 2007), s.v. ‘rule of law’; J.
Finnis, ‘Law as idea, ideal, and duty: a comment on Simmonds, Law as a Moral Idea’,
Jurisprudence 1 (2010) 247–53.

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 The Nature of Law 49

What about the content of these legally structured rules? The specific
norms of justice which, just as a sound ethics identifies them, need to be
included in any legal system are now often called jus cogens. These rules
(jus), peremptory (cogens) by virtue of their content – their inherent
reasonableness – rather than merely by virtue of their enactment or their
adoption in custom and/or judicial precedent, forbid choices, private or
public, to kill or harm with intent precisely to terminate life or damage
bodily integrity; or to rape; or to deceive by asserting a proposition
believed by the asserter to be false. As well as such exceptionless negative
norms, natural law’s foundational substantive principles include affirma-
tive directions whose application is dependent on appropriate circum-
stances (including the reasonable content of other parts of the particular
legal system). Given what a sound ethics and a sound political philosophy
establish, and the experience of lawyers and comparativists across many
centuries confirms, about these ‘appropriate circumstances’, the main
affirmative principles mandate, and give broad guidance in establishing,
not only (i) constitutional and other institutions of legislation and adjudi-
cation but also (ii) rights of property (whether ownership or lesser posses-
sory or beneficiary rights) in portions of the world’s resources (excluding
human persons), with appurtenant powers such as sale and rights such as
inheritance, all subject to responsibilities of distribution of holdings in
excess of the owner’s reasonable needs; and (iii) rights to make and enforce
contractual and other voluntarily assumed obligations, such as the mar-
riage of two persons who together can be the father and mother of these
spouses’ own children, a relationship important to law for the sake of
justice to the child(ren) and of sustaining the people itself whose law this
all is; and (iv) entitlements to compensation for losses imposed by
another’s fault; and (v) liabilities to punishment for defined offences
against the law; and (vi) conditional entitlements to sustenance in circum-
stances of extreme or undeserving indigence; and so forth. Such natural
law principles, precepts (negative or affirmative) and institutions, adopted
concretely into all or many legal systems, have traditionally been called
the jus gentium, the law of peoples.14

14
See CEJF IV at 182 n. 37, 183 nn. 40–1; CEJF II at 101–3. International law, as the law
regulating relations between peoples, is quite a different matter (and see Section 5 below),
even though it too contains an important natural law element, which can therefore be
called ius gentium.

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 50 John Finnis

The generic, underdetermined character of these wide-ranging responsi-

bilities of lawmakers and other persons responsible for the well-being of
their community and all its members – that is, for its common good –
entails that there should be positive rules of law created to crystallise these
principles as fully legal obligations, rights, powers, etc. Such crystallising
or concretising has been called determinatio (‘concretisation’), to distin-
guish it from the more deductive process of acknowledging – and deciding
to give positive-law legal effect to – the moral truth of the principles (and
precepts, especially the negative precepts) of natural moral law. But within
a positive law system, even these last-mentioned natural law, jus cogens
principles and precepts need some determinatio: the moral goods of
fairness, like the technical goods of craftsmanship, in application of law
call for stability, clarity and transparency, and predictability in their
application – rule of law – so that their applicability’s precise terms are
made common, and coherent with the system’s vocabulary and institu-
tions. So, for example, murder can be defined so as to distinguish it as a
‘degree’ of criminal homicide, and can be declared (say) a felony, suscep-
tible to (say) whole-of-life imprisonment, a disqualification from office or
vote, and so forth – but in all these details murder could reasonably have
been defined somewhat differently with somewhat different legal incidents
or consequences.15
In short, a legal system adequate to human needs will be of complex
nature: all positive, yet partly a matter of natural law (‘jus gentium’) and
partly (indeed largely) a matter of ‘purely positive’ rules. Rules of this latter
kind appropriately have a relation to their justifying principles that is too
indefinite or disputable for the rules to be describable as declarations (or
even applications) of the principles or as deductions from them.
Everything said in the last four paragraphs could be accurately and
sufficiently stated without speaking of ‘natural law’ or ‘natural right’ (or
jus gentium). That traditional language has always been exposed to mis-
understanding, and is perhaps particularly exposed today, when the his-
tory of philosophy is not widely known and the success of the natural
sciences arouses or reinforces the thought that explanation and descrip-
tion, and the very idea of ‘the nature of X’, are all properly located in the
first domain and its models of reality and explanation. But the principles of

15
As to what positive law adds in (say) mala in se offences, see J. Finnis, Natural Law and
Natural Rights (Oxford University Press, 1980, 2nd ed. 2011), 282–3.

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 The Nature of Law 51

natural law relevant to the understanding and justification of authority

and the laws of legally ordered societies are principles in the third domain
(though presupposing certain truths in the first and second). Knowledge of
them is the fruit of a search to bring order and reasonableness into one’s
own and one’s groups’ choices and actions. They are moral (= ethical)
principles, and those among them that are directly relevant to and properly
directive of lawmaking and compliance with law are principles of justice –
that is, of practical reasonableness’ requirements for those of one’s choices
that directly or indirectly affect the good of other human beings.
Despite the doubts of Hart and countless others, there are indeed such
principles and norms of practical right reason. Unfortunately, philosoph-
ical understanding and vindication of them has suffered many vicissi-
tudes. Notable among these setbacks are the utilitarianism that Bentham
laboured but failed to make coherent, let alone reasonable, and the
alternative to it proposed by Kant to rescue morality from utilitarianism’s
reduction of third-domain rationality to fourth-domain, technological
reasoning. For Kant’s rescue effort made the analogous mistake of seeking
moral rationality’s paradigm in the second domain (retaining from the
third domain little save the idea of bringing order into one’s free choices –
‘autonomy’), and modelling all ethical argument on logic’s mission to
eliminate contradiction. He failed to acknowledge any of the first prin-
ciples of practical reason (each in truth directing us to a substantive
human good such as life, knowledge, friendship, etc.), save the good of
practical reasonableness itself, a good which, since he had deprived it of
subject matter, he took to be the reasonableness of coherence. Dominated
by these failed reductions of ethics to inappropriate domains, modern
moral philosophy as actually expounded has been of little assistance to
philosophers of law.16
A sound moral philosophy, developing Plato’s, Aristotle’s and Aquinas’,
can be articulated not as ‘natural’ or ‘law’, but as principles and norms
(precepts, rules) of reason(ableness) that direct us to understand and
pursue, coherently, the flourishing of all human persons and communities
with reasonable prioritising and essential respect for persons in each basic

16
Dworkin’s philosophy of law (e.g. in R. Dworkin, Law’s Empire (Harvard University Press,
1986)) is essentially Kantian in its reduction of the goods for which law is needed to
equality and autonomy, and consequent focus on coercion and adjudication (rather than
on the substantive just common good that is the primary concern of lawmakers).

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 52 John Finnis

aspect of their flourishing – each basic human good. Still, by understand-

ing human flourishing in the only way it can be adequately understood
(namely, from within practical understanding and reasoning), we also
understand human nature adequately. For (as Aquinas stresses, but many
would-be successors have overlooked) the nature of any dynamic reality
can be understood only by understanding that kind of thing’s capacities
(potentialities), and these we can understand only by understanding the
activities that make them manifest, and activities cannot be well under-
stood except by understanding what they are heading for – their ‘objects’.
And the objects of human acts are first the basic goods (needs; ends;
elements of human flourishing) and then the means (kinds of action) that,
considered integrally, they call for.
Adequate third-domain understanding of law’s nature thus relates law
in all its features to human needs, both as intrinsic ends (basic human
goods, intrinsic elements or aspects of human flourishing) and as empiric-
ally effective and morally respectful means of realising those intrinsic
ends/goods/basic elements of well-being. We need common good and
justice, and for that we need the moral judgements and legal institutions
needed to make those very complex ends (and the principles directing us
about and to them) actual in the life of an ongoing community that is in (or
can be got into) shape for political existence and action.
But what about laws that, in manner of positing or in content, are made
without concern, or (knowingly or not) without respect, for common good
and/or for justice? Well, they lack an essential precondition for the claim
to authoritativeness that is part of law’s nature, an authoritativeness (more
simply, authority) that from the side of the law’s subjects entails an
obligatoriness that is both strictly and purely legal (like the predicate
‘legally valid’) and, presumptively but defeasibly, also moral obligatori-
ness. (The obligation is owed not to the bearers of lawmaking or executive
authority, but to other subjects of the law.) It may still be morally wrong to
do what they purport to (and as a matter of legal validity do) prohibit; for
such behaviour may as a side-effect have effects that it is unfair to impose
on one’s fellow subjects. But from a moral point of view which includes
but is not limited to the legal system’s own criteria of validity and
interpretation, these are laws that are (each in itself ) unsupported by law’s
most basic organising point (rationale, purpose). So it is an implication of
law’s positivity, adequately understood in terms of its justifying purposes,
that a seriously unjust positive law is so radically defective that, just as a

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 The Nature of Law 53

persuasive but logically fallacious argument is ‘no argument’ and an old

friend who turns out to be one’s betrayer is ‘no friend’, so too ‘an unjust
law is not a law’. Or, as Aquinas always preferred to say, ‘is not a central
case of law’, or ‘is not without qualification a law’ (but rather a kind of
corruption of law – deficient as law). The idioms are various, but the
propositions at stake should not be controversial. They involve no denial
of or inattention to the sad facts of human immorality and wicked law.
Rather, they draw attention to such immorality’s (injustice’s) significance
as depriving an act of human governance of all just title to be regarded as
changing the moral obligations of its subjects in the way law – by its
nature – is to be regarded as changing them, namely, in just the way and
(presumptively, defeasibly) to just the extent that it changes those subjects’
legal obligations.17
Some recent work in legal philosophy contends that, while ‘unjust law is
not law’ is false, ‘law not claiming moral legitimacy is not law’ is true: the
very ‘concept of law’ is said to entail, ‘conceptually’, that all laws claim
(often falsely) to be morally legitimate/obligatory.18 Philosophy of law, we
should reply, is a study not primarily of concepts and ‘conceptual neces-
sities’, but of what law needs to be in each of the four domains in which it
can be understood, acknowledged and posited; and it is the understanding
of these natural preconditions, logical necessities, morally significant
needs, and need (as we shall see) for kinds of technique and artefactual
institutions, etc., that yields concepts – in the first instance, (i) the concepts
excogitated and used by the persons and societies that have more or less
unphilosophically (or with common-sense’s philosophy) understood those
needs and responded to that understanding by creating and maintaining
legal systems (whether under the terminology of ‘law’ and its foreign
language cognates or not); and then, secondarily, (ii) the more adequate,
coherent and explanatory concepts of a philosophy of law, usually but not
exclusively framed in terminology borrowed from the practical life of
lawmakers, judges, legal advisers and citizens. So we should understand
both ‘unjust laws are not law’ and ‘laws not claiming to be just are not law’

17
See J. Finnis, ‘Law as fact and as reason for action: a response to Robert Alexy on law’s
“Ideal Dimension”’, American Journal of Jurisprudence, 59 (2014) 100–9.
18
Raz, Between Authority and Interpretation, 180; R. Alexy, The Argument from Injustice:
A Reply to Legal Positivism (Oxford University Press, 2002), 36; Gardner, Law as a Leap of
Faith, 125–45; contrast CEJF IV, 8 n. 18; Finnis, ‘Reflections and responses’, 538, 553–6;
‘Law as fact and as reason for action . . .’, 91–3.

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 54 John Finnis

as items in a philosophical reflection on what law needs to be. Morally

(that is, integrally reasonably), law ought to aspire to be just (morally
legitimate, etc.), ought to claim to be just (morally obligatory, etc.), and
ought, most importantly, to be just. Laws that are defective in aspiration,
form or content are so seriously defective that, in a decisive respect, they
fail to be law(s). But of course, they remain law(s) insofar as they are being
promulgated and enforced and historically efficacious in a given time and
place, as artefacts available, like other tools, for abuse as well as
appropriate use.
In these respects, law is no different from many other realities and
concepts with which social (political, legal, etc.) philosophy must come
to terms, and on which it should seek to shed the light of nuanced, supple,
undogmatic explanation.

4 Law as an Artefact of Artefacts

In order to be a just and effective form, and source for forms and instances,
of social coordination effective in promoting human flourishing within a
framework of respect for natural (= human) rights, law needs to have the
stability of a publicly accessible craft working within (and as) the frame-
work of institutions for lawmaking, law-administering and law-adjudi-
cating/enforcing. The idea of validity characteristic of positive law (and as
such distinct from logical/argumentative validity as such) is a primary
manifestation and instrument of law’s operations and nature as a fourth-
domain, artefactual kind of reality and aspiration responsive to that need.
Institutions as various as a constitution, a legislature, a judicature and
judiciary, a common law, a law of property and within it a law of real
property and a law of entails, or a law of contract and within it a law of
mistake in formation and a doctrine of interpretation . . . are all artefactual
instruments of a legal logic (see Section 2) and of a historically effective
(Section 1) legally ordered moral enterprise (Section 3). Many of these have
been mentioned in Section 3’s sketch of moral needs justifying and
demanding legal rules and institutions. As was also mentioned, they are
like other artefacts, in having significant intelligibility and reality simply
as artefacts, or techniques, or plans, which can also be deployed, even
successfully (and therefore also unsuccessfully), for more or less amoral
objectives or immoral purposes.

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 The Nature of Law 55

That is, they can be studied precisely as techniques, detached from their
(or any) moral rationale. They can be imitated more or less closely for non-
moral rationales, such as the wealth or power of their inventors, designers,
or master (or more lowly) users. This gives an opening for philosophies of
‘(legal) positivism’, claiming that law’s nature had best be defined amor-
ally, before any investigation of the moral purposes to which it may be put
or the moral criteria by which particular laws may be assessed, or by
which, if positive laws happen so to provide, rules may be granted validity
by reason of their moral soundness. But there is no reason to try to define
law (other than stipulatively, or lexicographically) before understanding
the reasons for having law at all, and some of those reasons are third-
domain reasons – reasons that when fully teased out as reasons are of the
kind we call moral: attentive to intrinsic human goods, and to the funda-
mental equality of human beings, all of us benefited by the instantiation of
those goods, and none of us a priori entitled to identity-based, as distinct
from reasons- and responsibilities-based, priority in the private or public
distribution of those goods. Vocabulary (lexicographical definition)19
assists us to see that we are discoursing about broadly the same sort of
subject matter,20 but any explanatory definition21 should express the
results of reflection on that subject matter’s nature, a nature understood
as what is articulated in a sufficient answer to ‘What is . . .?’ questions

19
Most recently, Gardner, Law as a Leap of Faith, 275–7 (in the idiom of ‘classification’
rather than ‘definition’); contrast ibid., 175: ‘the study of the nature of law can and must
begin, in a certain sense, with the central case of law as morally successful law’.
20
See for example, the first sentence of the penultimate paragraph of the introductory
section, p. 39.
21
That is, ‘real definition’ (definition that sums up an explanation of the thing [res] in
question, rather than reporting or stipulating usage of the word): R. Robinson, Definition
(Oxford University Press, 1952); Hart, Concept of Law, 279. An example: Aquinas proposes
and argues for a definition of law: an ordinance of reason for the common good of a
[complete] community, promulgated by the person or body responsible for looking after
that community [Summa Theologiae I–II, q. 90 a. 4c]. But in supplementing and explicating
that definition, Aquinas immediately stresses that law – a law – is ‘simply a sort of
prescription (dictamen) of practical reason in the ruler governing a complete community’,
and that ‘prescriptions’ are simply universal propositions of practical reason which pre-
scribe and direct to action.
Finnis, Aquinas, 255–6. For an expansion of that definition (and commentary on
definition) in light of subsequent work in the philosophy of law, see Finnis, Natural Law
and Natural Rights, 276–9, 472; J. Finnis, ‘Aquinas and natural law jurisprudence’ in G.
Duke and R.P. George (eds.), Cambridge Companion to Natural Law Jurisprudence (Cam-
bridge University Press, 2017), 17–55.

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 56 John Finnis

arising in all the four domains in which human life (as distinct from sub-
rational forms of life and existence) is lived.
So: self-styled ‘positivist’ definitions of law are more or less arbitrary to
the extent that they genuinely precede a moral assessment of the need for
law and legal institutions, and try to describe law’s nature and character-
istic institutions without the benefit of understanding that set of needs –
that set of reasons foundational for the articulated reasons (propositions)
about action that we reasonably call laws.22 Nothing philosophically
sufficient or explanatorily satisfying can be said about law without under-
standing it as – by its nature, though not adequately (and therefore
centrally) so in its many defective forms and instances – responsive to
morally weighty purposes of fair dealing between the members of a
community across time. And the truths, welcome or unwelcome, about
law in its defective forms and evil instances, truths which legal positivists
rightly resolve to face and explore, are all just as well, or better, disclosed
(and are unconfusedly describable and explicable) within the framework of
moral inquiry that historically generated the philosophical idea of ‘positive
law’,23 a framework continuous with the third-domain practical thinking

22
Raz rightly deprecates labeling legal theories ‘positivist’ or ‘non-positivist’; his theory of
law’s nature is in this and some other respects not a ‘self-styled “positivist” theory’. But in
‘The problem about the nature of law’ (1983) he applies the term ‘positivist’ to any source-
based standard; he defines as positivist any standard or consideration the existence and
content of which ‘can be ascertained without resort to moral [or any other evaluative]
argument’ – standards which the present essay, like most theorists, calls positive or posited
law). And he holds (in that essay and in ‘Authority, law, and morality’ (1985)) that, while a
‘doctrine of the nature of law’ must be evaluative (‘of the relative importance of various
features of social organizations’), its point and upshot is not to show that (or to what
extent) law is morally needed or appropriate, but rather to ‘elaborate and explain’ ‘the
concept of law’ as ‘part of our culture’, by ‘pick[ing] on those [ideas] which are central and
significant to the way the concept plays its role in people’s understanding of society’:
Ethics in the Public Domain 205–9, 211–12, 237; his 1994/6 essay on the nature of law
(‘On the nature of law’ ) does not depart from this position. So – though his 2003 essay
(‘About morality and the nature of law’) makes some movement toward accepting a
‘Thomist’ ‘moral case for having legal authorities’ (Between Authority and Interpretation,
173) – his ‘doctrine of the nature of law’, unlike other parts of his philosophy of law
(including parts as proximate to that doctrine as his ‘service conception of authority’), has
deliberately proceeded without incorporating or presupposing a systematic moral assess-
ment of the need for law and legal institutions; his account of the evaluations involved in
the ‘doctrine’ truncates the nature of third-domain investigations of practical reason, and
remains too limited to describing culture qua first-domain fact of a ‘historical or socio-
logical’ kind.
23
Finnis, ‘The truth in legal positivism’, in CEJF IV, 174–88.

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 The Nature of Law 57

of those who have constructed the systems of normative coordination and

direction called by them, and then by us all, legal.

5 Law and the Nature of Persons and Groups

Law has the nature it has because human persons have the nature they
have, and beings of that nature need for their nature’s full or even
adequate instantiation the assistance of many, the respect of all, and the
love, in varying measure, of some. Law has its existence primarily in the
mind (conceptions and assent) of the person or persons who accept
responsibility for serving the common good of a community capable in
principle of meeting all the kinds of this-worldly needs. It has its existence
secondarily but most importantly in the minds of all who understand and
assent to what propositions of law the lawmaker(s) intended to introduce
into the set of propositions constituting that community’s law (its legal
system). Many of those may regret and even resent one or more laws, yet
comply with them for the sake of upholding the legal ordering of their
community, an ordering which depends for its fairness, and even its
existence, on excluding all picking-and-choosing save that which a ser-
ious, authentic competing moral responsibility mandates. Some members
of any community, and some (perhaps many) persons in other commu-
nities, or in stateless piracy/brigandage, will willingly defy the law’s
requirements. So the responsibility of the lawmakers includes a very
serious duty to provide for the forceful application of the law to such
people, and for their punishment, and the deterrence and suppression of
future offences. Entrusting to rulers this power of applying force is rea-
sonable, though also very risky.
Within a well-ordered political community substantially united by
common history, memory, culture and reciprocal trust, the constitutionally
stipulated rule of law can often ensure that abuse of legal and de facto
power by rulers is kept to tolerable levels. But as between states, which
must share the Earth with each other and respect the common good of
mankind, many of those preconditions do not obtain. So it is reasonable to
judge that public international law, though obviously needed (as a matter
of moral responsibility), does not fully participate, and for the foreseeable
future should not be conceived as fully participating, in the nature of law
as one of law’s central forms. International law, as morally needed, is

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 58 John Finnis

positive law, but made directly or indirectly by agreements rather than by

rulers entrusted with the power to compel obedience to law and punish
disobedience. Here as elsewhere in these reflections, sound judgement
about the nature of the subject matter has as one24 of its necessary
conditions sound evaluations and judgements about moral responsibilities
and entitlements: a sound, historically informed ethics and political
philosophy.

24
Another necessary condition (as in all practical reasoning) is accurate understanding of
and attentiveness to the facts about the circumstances in which (including likely conse-
quences with which) these responsibilities will be carried out, entitlements granted (or
acknowledged) and respected, and so forth.

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