On the Place of Morality within Natural Law: A Critical Examination of John Finnis’ Divergence from Traditional Natural Law Theory in Natural Law and Natural Rights
Natural Law theory is famously the origin of the maxim lex injusta non est lex, an aphorism that divulges traditional Natural Law theorists support of an absolute connection between law and morality. Yet, modern doctrines of Natural Law have sought a departure from the autocratic nature of morality. This dissertation will consider one such departure, in John Finnis' Natural Law and Natural Rights. It will examine whether Finnis' stance on morality within the context of Natural Law is consistent with that of traditional Natural Law theorists and go on to explore the consequences of any divergences that arise.
INTRODUCTION
There can be no dispute on the diversity of legal theories. From the legal conservatism of the Sabinian jurists[1]to the sovereign command theory posited by John Austin[2], theories of law may differ in a variety of ways, from their “substance to [their] organisation and style.”[3]An examination of the substance of a theory is arguably most important as it facilitates a search for the common thread that groups theories together under such headings as ‘Natural Law’ or ‘Legal Positivism’. This classification of legal theories into schools of thought poses three distinct advantages.
Firstly, it makes the study of law more organised and coherent. Students of law, in particular will benefit from a concise categorization of legal theories in their aim to understand jurisprudence. Secondly, it poses the intrinsic advantage of comparison within similar entities, allowing a theory to be judged against others within its group. Lastly, a group of theories classified under one term can be critiqued as a whole. The entire group can be evaluated for its relevance and practicability. However, this can only be achieved if the fundamental characteristics (‘common thread’) of the group are defined with enough clarity to say with certainty whether a theory is or is not a part of that group. Yet, it is the search for this ‘common thread’ that proves most difficult, and it is what this dissertation embarks upon.
This paper will aim its attention at the group of Natural Law, using John Finnis’ Natural Law and Natural Rightsas a focal lens to critically examine the group’s foundations. As “one of the most prominent and important advocates and defenders of Natural Law theory”[4]in modern times, Finnis and his work serve as appropriate devices for considering the true elements of Natural Law theory and contrasting modern Natural Law theory with traditional Natural Law theory.
The prominence of Finnis as a Natural Law theorist despite, as this paper will argue, his divergence from traditional Natural Law theory suggests that his theory may still exist in harmony with traditional Natural Law theory as two different subgroups under the heading of Natural Law. This paper will seek to oppose this claim, proposing that there is a single criteria that a legal theory must meet in order to be categorized as a Natural Law theory and prevent “a fictional, weak hybrid view”[5]of the school of thought.
It is, however, of importance to note Joseph Raz’s argument on the dangers of referring to schools of thought. Raz writes that “[one] of the unattractive tendencies of contemporary legal and political philosophy [is where a commentator] does not discuss any-one’s views but a family of views. This allows one to construct one’s target by selecting features from a variety of authors so that the combined pictures is in fact no one’s views, and all those cited as adhering to it would disagree with it.”[6]These dangers as set out by Raz will be avoided by close scrutiny and proper attribution of ideas to individuals within the Natural Law school of thought. The “combined picture”[7]will consequently offer an accurate depiction of the views of each individual. This will also aid in the presentation of a credible ‘common thread’ running through the Natural Law school.
Though some, such as Weinreb, may argue that “there is little agreement about what counts as natural law,”[8]an informed interpretation of Natural Law will highlight that morality is a paramount element of any theory claiming to be within this group. The arguments put forth on the identity of Natural Law will therefore seek to remedy the misconception that “Natural Law theorists [have failed] to give univocal or unequivocal meaning to the term.”[9]The timeworn question of ‘what is Natural Law?’ will be answered herewith: Natural Law theory, as established by the likes of Plato, Cicero and Aquinas, is a theory defined by its marriage of legality and morality.
In discussing morality, the term is often inflicted with ambiguity. This paper will adopt the word’s ordinary meaning of “a doctrine or system of moral conduct”[10], with ‘moral’ further defined as “of or relating to principles of right and wrong in behaviour”[11]. Similarly, the motif of obligation will take the everyday definition of “something one is bound to do”[12]. The interchangeable concepts of legality and validity, however, will be defined in a manner more appropriate to the discussion that will be had. The natural meanings of legal or legality are “deriving authority from or founded on law”[13]and “having a formal status derived from law”[14]. However, as this paper focuses not on the law itself, but rather on the theoretical examination of law, these definitions are unsuitable. In discussing legality, the jurists and philosophers whose works will be examined sought to derive authority from notions other than law (i.e. from morality, justice, human flourishing). Legality or validity, when referred to in forthcoming sections, will hence be defined as ‘effected by or in law.’ This will mirror the fact that jurisprudence works in reverse so as contemplate what H L A Hart deems the “persistent question”[15]of what is law? Thus, the principles examined in theoretical studies of law are not derivedfrom law, they are prescribedto law.
STRUCTURE
This paper will adopt a three-fold structure: description, comparison and evaluation. Sections 1 and 2 will offer descriptive accounts of traditional Natural Law theory and the Natural Law theory of John Finnis as set out in Natural Law and Natural Rights[16]respectively. The former will focus on the works and teachings of the most influential traditional Natural Law theorists, namely Socrates, Plato, Aristotle, Cicero and Aquinas. This focus will be done to provide an accurate account of traditional Natural Law as propounded by its creators and most significant followers. The latter section will focus on John Finnis’ Natural Law and Natural Rights, the most decisive piece of work in his construction of a Natural Law theory. An original interpretation of both theories will be provided alongside existing literature, academic commentaries, and translations of foreign-language texts. These descriptive accounts will create a theoretical framework against which to evaluate Finnis’ divergence from traditional Natural Law Theory.
Section 3 will critically assess the compatibility of Finnis’ theory to traditional Natural Law theory. It will compare three crucial elements of the former to the latter; (1) the place of reason within Natural Law, (2) the location of morality within Natural Law, and (3) the separation of law from morality. Each comparison will contrast the views of Finnis with those of Socrates, Plato, Aristotle, Cicero and Aquinas to determine the compatibility of Finnis’ theory with traditional Natural Law theory and offer a conclusion on whether Finnis’ theory diverges from traditional Natural Law theory.
This paper will culminate in an evaluation of the differences found, in Section 4. Section 4 will explore the advantages and disadvantages of Finnis’ theory. The evaluation will balance the need to preserve traditional Natural Law theory with the desire to make Natural Law applicable in the modern age so that it may no longer be subjected to the criticism of being “a side show…not to be taken seriously.”[17]
SECTION ONE: TRADITIONAL NATURAL LAW THEORY
Traditional Natural Law theories provide a set of deontological conditions for the existence of law. These criteria are based on non-legal norms, namely the transcendent value of justice. An inquiry into the nature of justice (“acting or being in conformity with what is morally upright or good”[18]) reveals the inextricable link it has with morality. The epistemological inquiries carried out by Natural Law theorists will therefore look to the substantive contents of a law and evaluate them against moral suppositions. Soper elucidates on this process, defining it as one which uses “empirical tests for identifying law and…morality as a filter to check or determine validity.”[19]The principal tenet of traditional Natural Law is therefore that the legitimacy of a law is dependent on it having moral content. Writing from within the school of thought, Ronald Dworkin affirms this view, characterizing Natural Law as “any theory which makes the content of law…depend on the correct answer to some moral question.”[20]
This belief can be found in the maxim lex injusta non est lex (‘an unjust law is not a law’). It is a theorem often attributed to St. Thomas Aquinas, whom author on jurisprudence Brian Bix, alongside many others, considers to be “the most influential writer within the traditional approach to Natural Law.”[21]Aquinas’ position as a key figure in Natural Law should lead to the logical determination that the views he takes in Summa Theologica, in their original form, are descriptive of the essence of Natural Law. Yet some, Bix included, offer a diluted analysis of unjust laws. Bix argues that “a more reasonable interpretation of statements like ‘an unjust law is no law at all’ is that unjust laws are not laws ‘in the fullest sense.’”[22]Moreover, some may point to the dialectics[23]of the maxim to argue that “since the slogan itself uses the term ‘law’”[24], traditional Natural Lawyers must have considered unjust laws to be laws in themselves. This, however, is a cavil and inaccurate reading of traditional Natural Law theory. An accurate interpretation, by contrast, will disclose traditional Natural Law theorist’s allegiance to an undiluted reading of the lex injusta non est lex maxim.
Aquinas’ fidelity to this moral absolutism, in his assertion that “an unjust law is no longer legal but rather a corruption of law”[25] is mirrored by Natural Law theorists and philosophers both in present time and at the inception of the theoretical movement.
St. Augustine was the first purveyor of Aquinas’ maxim, arguing in 395 AD that “a law that was unjust wouldn’t seem to be law.”[26]Moreover, modern support for the aphorism comes from the likes of David Lyons, as he asserts that “the distinctive doctrine of Natural Law theory often seems to be that an unjust law is not a law at all. An unjust law is like counterfeit currency, which causes trouble because it so closely resembles and may be taken for the real thing. But unjust law is not genuine law…I call it Natural Law because it maintains that moral standards are implicit in or intrinsic to the law.”[27]
In the writings of both historical figures and modern analysists alike, a common thread can consequently be traced. The shared denominator in each of their conceptions of Natural Law is the paramount position of justice. Legal philosopher Neil MacCormick was therefore correct in arguing that “the leading jurisprudential image of Natural Law theory presented it as defined by the thesis that unjust laws are necessarily non-laws.”[28] The foundation of traditional Natural Law theories therefore rests on the inherent justice of a law.
Yet, there is more to the identity of Natural Law than “simply the assertion of some moral principle”[29]as argued by Weinreb. Whilst the preceding Natural Law theorists and those that will be examined below are all in agreement on the paramount nature of morality within Natural Law, they differ in their approaches to locating morality. Yet, whilst exploring their theories, it is important to note that their differences do not have a bearing upon the common thread that runs through them all, namely that the validity of a law is subject to its moral content.
In determining what is moral, writers on Natural Law possess two distinct procedures. The first, as carried out by Sir William Blackstone, is to look outside of the sphere of human law to principles of nature. Blackstone described the former by reference to the latter, asserting that “no human laws are of any validity, if contrary to [the law of nature].”[30]He therefore viewed nature as the source of law and, by extension, morality. Blackstone’s allusion to a transcendent law of nature reflects Aquinas’ four laws: eternal, natural, divine and human[31].
Aquinas had a similar method of identifying the morality that must be present in a law for it to be valid, as he believed that “a just law is one which is consistent with the requirements of Natural Law.”[32]Hence, for both Blackstone and Aquinas, morality could be derived from nature or natural law.
By contrast, the second approach to identifying morality remains within the sphere of human law. Plato and Cicero both looked to human nature and the aims of law in order to determine what morality was, and thus what needed to be present in a law for it to be legitimate. They believed that “laws…are fully intelligible only by reference to the ends or values they ought to realise.”[33]For Cicero, law should be aimed “towards the ultimate good, which is the standard and goal for every action,”[34]as he asserted that “…everything in conformity with nature that helped us in life was good.”[35]Similarly, Plato wrote that “enactments, so far as they are not for the common interest of the whole community, are no true laws.”[36]Both made reference to an end goal, which can only be determined by analysing the needs presented by human nature, transmigrating these to an evaluation of whether these needs could be met by a law. Hence, they believed that “moral truths are to be derived from truths about human nature.”[37]
Although Plato and Cicero on the one hand, and Blackstone and Aquinas on the other may have differed in their approaches to locating morality, they were all in agreement on two elements. Firstly, they each believed that the process of locating morality must be done by use of human reason (considered in section 3). The source of morality, be it human nature or the law of nature, was variable by degrees. However the process of identification for these traditional Natural Law theorists and philosophers directly required reason. Second, they each made concerted efforts tolocate morality. Their acts of doing so greatly endorse the notion that they believed morality to be an essential element for the legitimacy of a law, in accordance with the maxim lex injusta non est lex. An informed and analytical interpretation of traditional Natural Law theorists therefore uncovers Natural Law to be based on the notion of moral absolutism: an unjust law is not a law.
SECTION TWO: FINNIS’ NATURAL LAW THEORY
An examination of John Finnis’ Natural law theory would be incomplete without a reference to the historical and conceptual gap in legal theory between traditional Natural Law and modern Natural Law.
Each of the theorists previously examined in section 1 rested their beliefs on transcendent objects (Plato and Cicero on the abstract values of truth and justice, Aquinas on God). Their references to human nature were thus based on the presupposition of the existence of these objects. If the existence of these objects is not presumed, the beliefs that will be borne may then differ. A semblance of understanding may therefore be offered toward John Finnis’ interpretation of Natural Law theory, as these notions of ‘legitimacy through religion’ and ‘legitimacy through transcendent principles’ disappeared over time.
The growing secularity of God from Law and the emergence of Legal Positivism placed Natural Law in the background of legal theory, a discussion examined in section 4. The views of positivists such as Hobbes, Hart and Austin took prominence, as they argued that the existence of law was independent from outside factors (such as morality), Austin famously asserting that “the existence of law is one thing; its merit or detriment is another.”[38]Thus, a debate on the moral content of law was no longer a legal debate, and the seperability thesis propounded by Legal Positivism became the leading opinion amongst legal philosophers, theorists and jurists alike. It is into this theoretical climate (one in which the unity of legality and morality was considered an archaic consideration) that Finnis’ Natural Law was born into. This climate indubitably influenced both his beliefs and juristic processes, with Porter suggesting that “modern Natural lawyers, like their medieval forbearers, developed their concept of the Natural Law within a context of practical concerns generated by their own social and intellectual situation.”[39]
A foremost inspection of Finnis’ work, however, may lead to an agreement with Robert P George as he notes that “Finnis writes from within the Natural Law tradition and with a deep appreciation of it.”[40]From the onset of Natural Law and Natural Rights, Finnis opposes notions set forth by Legal Positivists[41]such as Hart, Kelsen and Bentham, making reference to his Natural Law predecessors[42]throughout his discourse. His most notable influence is Aquinas, the views of whom he cites multiple times, both in agreement and debate. However, Finnis’ work introduces a host of original ideas. His theory contains a multiplicity of elements; the focus in this paper will be on those features relating to morality.
At the centre of Finnis’ theory lie the seven “self-evident”[43]basic goods or basic values: life, knowledge, play, aesthetic experience, sociability, practical reasonableness and religion.[44]Finnis describes these goods as “the basic aspects of…well-being”[45]and they are, as a consequence, values “to-be-pursued.”[46]Although Finnis then goes on to assert that “each [basic good] can reasonably be regarded as the most important…there is no objective hierarchy amongst them”[47], the importance of one basic good in particular is of significance.
The basic goods explain whyhumans undertake certain activities[48](i.e. to gain knowledge or to preserve life). However, practical reason explains how humans are to conduct these activities. Thus, practical reason is imperative as it determines how people must act in order to attain the basic goods, flourish as humans, and ultimately realise a just outcome to our lives. In Becker’s view, “Finnis theorizes that justice is essentially a matter of practical reasonableness.”[49]In the theory of John Finnis, practical reason is therefore tethered to justice and by extension morality.
For Finnis, the morality of a law can be determined by reference to these seven basic goods. A legal system which serves the basic goods is a moral legal system. As the basic goods are an allusion to the Stoic principle of Eudaimonia (‘flourishing’ or in Finnis’ words “for the common good of that community”[50]), Finnis makes the assertion that a legal system will only be moral if it helps “to foster coordination for the asymptotic realization of the common good.”[51]For Finnis, a moral law is one which supports human flourishing and “which enables the members of a community to attain for themselves reasonable objectives…for the sake of which they have reason to collaborate with each other…in community.”[52]
However, in Finnis’ view the morality of a law is not a precondition for its validity nor for the obligations it may impose. Although a law is only moral if it serves the basic goods, laws which do not do so (and are therefore immoral) may still be valid and impose obligations. Rice explains this philosophy as one which draws a line between legality and morality, writing that in Finnis’ theory “a law’s injustice does not necessarily deprive that law of all legal validity even though its injustice may deprive it of moral obligation.”[53]
Finnis thus distinguishes between legal obligation and moral obligation. A morally good law imposes both sets of obligations, however a morally unjust law may only impose legal obligation. A law may be morally invalid whilst, in Finnis’ words, still be “’legally valid’ or ‘legally obligatory’ in the restricted sense that (i) it emanates from a legally authorized source, (ii) will in fact be enforced by courts and/or other officials, and/or (iii) is commonly spoken of as a law like other laws.”[54]Moreover, laws which are morally invalid but legally valid may still impose moral obligations. This is a moral obligation to follow the lawas “one may be required to obey even an unjust law to the extent that is necessary to avoid bringing the law, as a whole, into contempt.”[55]As noted by Pavone, “Finnis goes out of his way to stress that ‘the central tradition of natural law…accords to iniquitous rules legal validity’”[56]and “that there may be an obligation to conform to some such unjust laws.”[57]Hence, Finnis’ theory draws a distinction between law and justice. He does not rest his beliefs on the supremacy of justice nor does he view morality as a precondition for legality. Rather, his theory centres around a law’s service to the seven basic goods.
SECTION THREE: COMPATIBILITY
Now that a concise description of both traditional Natural Law theory and John Finnis’ Natural Law theory have been provided, the latter’s compatibility with the former will be examined. In the coming section, three elements of Finnis’ theory will be examined alongside the views of traditional Natural Law theorists: 1) the place of reason within Natural Law, (2) the location of morality within Natural Law, and (3) the separation of law from morality. The previously mentioned views of Socrates, Plato, Aristotle, Cicero and Aquinas will be elaborated upon as checks against Finnis’ own beliefs.
ELEMENT ONE: THE PLACE OF REASON WITHIN NATURAL LAW
The works of Plato and Socrates are long considered to be the progenitors of the theory which is now referred to as Natural Law. In particular, the ideas expressed by Plato in The Republic contribute much to the content of the work of subsequent Natural Law theorists, Finnis himself asserting that Natural Law is a “philosophical tradition that [Plato] initiated.”[58]It is, as follows, to these ideas that much of traditional Natural law is indebted, and it is with these views that Finnis’ theory may be compatible.
One interpretation of the ideologies of both Plato and his predecessor Socrates may find them to be consistent with Finnis’ basic goods. Plato’s theory of Forms, explored in his The Republic, mandates that there are absolute values in existence which are not visible but only intelligible through “understanding and dialectic reason.”[59]Examples of these Forms are Beauty and Goodness. Socrates expounded on the nature of these Forms by stating that although “’there are many beautiful things and many good things,’ there is only one Form of each such that there is the Form of the beautiful and the Form of the good.”[60]These singular Forms cannot be embodied by visible objects in the “sensible world.”[61]Two examples can be given to illustrate this notion.
The first instance is defined by Plato, who explains that a vase can be beautiful but it is not the Form of Beauty itself. The value is Beauty (located in the “super sensible world”[62]) and the vase (located in the sensible world) merely approximates this value. A similar example is given by Socrates with an analogy incorporating the sun. He asserts that “what the good itself is in the intelligible realm, in relation to understanding and intelligible things, the sun is in the visible realm, in relation to sight and visible things.”[63]Thus, the transcendent and absolute value of Goodness can only ever be approximated by earthly ideals or objects. By extending these analogies, one can interpret the theory of Forms to mean that an ideal such as Law can only ever approximate or participate in Goodness (or morality) but can never be Goodness. Moreover, Plato links the absolute value of Goodness to neosis(reason). He asserts that Goodness is only “cognizable by the higher reason”[64]and is “to be apprehended by reason and intelligence, but not by sight.”[65]He therefore asserts that absolute values can only be understood by the use of human reason.
The “ontological status”[66]given to Goodness by Plato and the use of reason to fathom this Form can be seen to mirror Finnis’ views on morality. If Goodness is taken to be equivalent to morality, the cardinal Natural Law writers Plato and Socrates then believed two things: (1) morality can only ever be approximated by law and (2) reason must be used to understand morality. This is consistent with Finnis’ views, examined above in Section 2. However, the two beliefs will be explored thoroughly in turn to determine their compatibility with Finnis’ theory.
The first belief is that morality can only be approximated by Law. In Natural Law and Natural Rights, Finnis notes that “moral rules, morally considered have no datable origins and cannot be amended.”[67]Hence, he prescribes a transcendent quality to morality. As laws and legal rules can be amended and their origincan be determined, the hidden premise in Finnis’ statement is that law is not morality itself. They cannot be synonymous if they have differing characteristics. By extension, Finnis’ words can be interpreted to mean that law can approximate morality (in the same way the vase approximates the Form of Beauty) by serving the seven basic goods and participating in morality. This interpretation of Finnis’ theory sees it to be consistent with the views of both Plato and Socrates.
The second belief held by the two Greek philosophers is that reason must be used to understand the Forms. The importance of reason in Finnis’ theory has been examined in some detail above. It is through the use of practical reason that the basic goods can be manifested and lead to a moral legal system. Thus, “objective moral principles are accessible to human reason.”[68]Weinreb highlights the necessity of this particular basic good in Finnis’ theory, noting that “Finnis’s argument seems to be constructed in order to show that by relying on our reason alone — being ‘simply reasonable’ — we can recognize objective moral truths.”[69]Hence, like Plato and Socrates, Finnis stresses the importance that reason has to play in locating morality.
G.E.M. Anscombe also provides an interpretation of Aristotle and Aquinas’ work that sees Finnis’ theory to be compatible with traditional Natural Law. Anscombe firstly highlights the influence that Aristotle’s work had on Aquinas, noting that “Aristotle’s Nicomachean Ethicsis the text that had the single greatest influence on Aquinas’ ethical teachings.”[70]With this in mind, she goes on to posit the argument “that philosophers interested in morality might start fresh by returning to Aristotle’s work on…practical reason.”[71]Anscombe thus draws a direct correlation between morality and practical reason in the theories of both Aristotle and Aquinas. This is a correlation that Finnis also embodies in his theory.
In explicating the basis of Natural Law theory, Finnis argues that “rationality, reason, reasonableness is what [Natural Law] is really about.”[72]He holds the belief that “the main objective of a theory of Natural Law is to show how sound laws are to be derived from principles based on reason.”[73]He therefore puts forth the argument that reason is the fundamental principle of Natural Law theory[74], asserting that reason is the central component of law. This hypothesis on the essence of Natural Law may be supported by both Aquinas and Cicero, subject to their works being read in a particular manner.
Aquinas speaks much of the importance of reason in his works. Yet, the most pivotal statement he makes on “the union between law and practical reason”[75]is found in On Law, Morality and Politics. In this seminal discourse, Aquinas defines law as “nothing else than an ordinance of reason.”[76]This proclamation seems to place reason in a position of paramount importance, as it can be seen to be a necessary element for the creation of any law. Vernon Bourke supports this interpretation of Aquinas, arguing that Aquinas must be seen “primarily as a theorist of right reason.”[77]
If the central ideal in Aquinas’ philosophy is taken to be reason, and Aquinas is considered a traditional Natural Law theorist, the logical sequitur is that traditional Natural Law theory as propounded by Aquinas is centred around reason, rather than morality. This Thomsitic view of Natural Law theory is in support of Finnis’ argument.
Cicero defined law in a similar fashion to Aquinas. He believed that “True Law was based on ‘right reason’.”[78]Thus, both philosophers contend that the interaction between law and reason is essential for the existence of the former. Westberg endorses this interpretation of Cicero and Aquinas’ views. He acknowledges that a reading of their discourses leads to the conclusion that “properly speaking, law is related to reason,”[79]going even further so as to argue that this is “the foundation of the whole treatment of law.”[80]
Thus, if the works of Aquinas and Cicero are read in this light, they repudiate the notion that morality is the fundamental ideal of traditional Natural Law. Instead, reason is posited as being the central tenet of traditional Natural Law theory, in accordance with John Finnis’ arguments. As a result of these interpretations, Finnis’s theory is seen to be compatible with the views of Plato, Socrates, Cicero and Aquinas on three major points: (1) Law is not synonymous with morality, (2) Reason must be used to understand morality, and (3) Reason is the central tenet of Natural Law theory. However, the congruity of Finnis’ ideas to those of the traditional Natural Law theorists can be challenged on the bases of logic and misinterpretation.
If the two final arguments ((2) Reason must be used to understand morality, and (3) Reason is the central tenet of Natural Law theory) are considered, they reveal a logical non-sequitur. This is because reason cannot be used to understand morality and concurrently be the central tenet of Natural Law theory. If reason is only to be used to understand morality, then it is an agent employed to provide comprehension of the higher entity that is morality. Reason cannot therefore be the central tenet of Natural Law theory. It is, by logic, merely an instrument, the use of which will enable the discovery of that which is the truecentral tenet of Natural Law theory.
In asserting that “rationality, reason, reasonableness is what [Natural Law] is really about.”[81], Finnis, alongside Bourke and Westberg, may have attributed more importance to the words of Aquinas and Cicero than the two Greek philosophers intended. Though Aquinas and Cicero respectively stated that law is “nothing else than an ordinance of reason”[82]and that “True Law was based on ‘right reason’”[83], neither went so far as to argue that the central tenet of Natural Law is reason. It is merely an interpretationof their words that leads to this conclusion.
There are two levels of interpretation that must then go on to be considered: (1) the ways in which the works of Plato, Socrates, Aquinas and Cicero have been interpreted, and (2) the ways in which the philosophers (Plato and Aquinas in particular) interpreted the works of their predecessors. The latter will be explored first.
Both Plato and Aquinas’ ideas drew inspiration from the works of writers that came before them, Plato from Socrates and Aquinas from Aristotle. There can thus be a debate on whether Plato and Aquinas correctly interpreted the works of Socrates and Aristotle respectively in constructing their own theories of Natural Law and the places that reason and morality had within it.
When considered chronologically, Socrates was the first purveyor of traditional Natural Law, and thus it is to his views that questions of compatibility must turn. However, it is important to note that the ideas of Socrates were never written down by Socrates himself. Plato shares Socrates’ thoughts in his own works, and the Platonic dialogues may therefore present tendentious accounts of Socrates’ philosophy. If this is the case, then the first crack in Natural Law theory may have appeared long before Finnis’ was born. Plato’s theory of Forms may have been based on an inaccurate understanding of Socrates’ teachings. However, there is little footing in academic dialogues to find Plato’s works erroneous.
Turning to Aquinas, Anthony John Patrick Kenny, Daniel Nelson and Martha Nussbaum all contend that Aquinas misinterpreted Aristotle’s views on reason, his work being labelled a “distortion of genuine Aristotelianism.”[84]They “have strongly argued that the association of rules and practical reason in Aristotle is a faulty interpretation.”[85]The debate is thus between Kenny, Nelson, and Nussbaum on the one hand and Bourke and Westberg on the other. A semblance of weight may be given to the views of the latter pair when it is noted that Bourke’s philosophical expertise was on the philosophy of Aquinas. Hence, some may argue that he is better placed to judge Aquinas’ interpretation of Aristotle’s work. However, both Kenny and Nussbaum’s works were more wide-ranging, as they wrote on the philosophical tradition as a whole. This can be argued to mean that they possessed a more holistic outlook on Natural Law theory, with perspectives that were not biased toward Aquinas. The deliberation on whose views are more credible is unlikely to be resolved. It may be therefore prudent to find middle ground, and acknowledge that Aquinas “employed Aristotelian Natural Law philosophy only to the extent that it assisted him to validate the Christian doctrine and the existence of God.”[86]
Thus, the first level of interpretation can be settled, albeit tentatively, as being correct. This paper will proceed with the view that Plato’s interpretations of Socrates and Aquinas’ interpretations of Aristotle were accurate. The focus then turns to the more pivotal question of whether Finnis interpreted the works of Aquinas, Plato, Cicero and Socrates correctly.
Finnis himself “proposed that Aquinas’ work, when taken out of context, may be misinterpreted.”[87]Finnis has arguably done just this, as he has interpreted the works of Aquinas in a manner which best suits the construction of his own theory. Porter argues in favour of this, asserting that “[Finnis’] interpretation of the Natural Law does not accurately represent Aquinas’ understanding of the Natural Law.”[88]It is submitted that Finnis has gone even further so as to misinterpret Plato, Socrates and Cicero, as he constructs an argument that places reason at the epicentre of Natural Law. Though each of the philosophers agree on the importance of reason in the context of locating morality, they, as previously examined, only see reason as means of understanding the absolute value of morality. Absolute values are, in their view, the paramount aim of Natural Law. As a consequence, Natural Law theory cannot be centred around reason.
ELEMENT TWO — THE LOCATION OF MORALITY WITHIN NATURAL LAW
The first conspicuous deviation that Finnis’ theory makes from traditional Natural Law theory is on the location of morality. Traditional Natural Law theorists provide similar sources for morality amongst themselves. Aquinas believed that morality resided in the Law of Nature, which was expressed by God[89]and represented in human nature[90]. Whilst the ancient Greek philosophers made no mention of the Christian incarnation of God, they too viewed morality as a component of Natural Law, also represented in human nature. As examined above, all believed that morality could be derived by the use of human reason.
Finnis also asserts that practical reason is to be used to understand morality. However, he does not provide a “transcendent source”[91]of morality nor “a teleological metaphysical view of human nature.”[92]Finnis instead locates morality in the seven basic goods themselves. As interpreted by Becker, he “insists on taking the basic goods as self-evident rather than taking them as grounded in human nature.”[93]Finnis thus renders human nature all but inconsequential in locating morality, writing himself that “the first principles of natural law…are not dependent upon a prior adequate knowledge of human nature.”[94]This statement notably betrays the dissolution of morality and human nature that is prevalent in Finnis theory. The separation between these two ideals is highlighted further by Becker’s subsequent explanation of Finnis’ argument as one which alleges that morality “does not require a metaphysical grounding…in order to be understood”[95]and “that the epistemic source of moral principles is not dependent on some prior understanding of human nature.”[96]It is therefore evident, in the words of Finnis himself and in the analysis of his views by academics, that Finnis provides a theoretical view of morality that differs from his predecessors.
Finnis goes on to admit that “in relation to judgements about what is good and right…there has been a tendency in the tradition to respond: human nature.”[97]Thus, Finnis himself is conscious of the perspectives of the likes of Aquinas and Plato. However, his concession that there is a connection between morality and human nature in traditional Natural Law does not impede him from attempting to find his views on human nature as compatible with those of Aquinas. In his essay, Natural Law Theory: Its Past and its Present, Finnis posits the view that “even in the work of Aquinas…’moral’ means: pertaining to human conducts as a matter of choice rather than as determined by human nature.”[98]This, however, is a misconstrued understanding of Aquinas.
Becker presents the opposing view that Aquinas believed morality to be “defined by reference to human nature.”[99]This is supported by Soper’s interpretation of Aquinas as someone who aimed to “establish moral truths ‘naturally’, deriving them from a proper understanding of the laws of nature and, in Aquinas’s case, ultimately from the eternal laws of God.”[100]The paramount position of human nature in the views of not only Aquinas, but also other traditional Natural Law theorists, is irrefutable if their works are read with precision.
Aristotle held beliefs similar to those of Aquinas on morality’s dependence on human nature. He wrote in his Rhetoric that something “is just, meaning that it is just by nature.”[101]Here, Aristotle draws a conclusive connection between justice and nature, presenting the view that the former is given its substance by the later. This, as argued by Vieru, can be extended to mean that “the content of ‘natural’ justice…is set by nature.”[102]Similarly, Cicero’s statement that “True Law was based on ‘right reason in agreement with nature’”[103]suggests that reason must be used to derive morality from nature. Cicero’s use of the word ‘agreement’ puts forth the view that nature is the ultimate authority on morality; that which is in accord with nature will be True Law, that which is not will not be True Law. Plato too saw a link between morality and human nature, writing in The Republic that a person may only craft justice by reference to human nature.[104]
Plato, Aristotle, Aquinas and Cicero thus believed that morality and justice were intricately associated with human nature. They each viewed nature as the source from which morality could acquire its form. Brian Brix ascribes to this belief the true title of traditional Natural Law as he states that traditional Natural Law theory “considers the connections between the universe, human nature, and morality, usually deriving the last from some combination of the first two.”[105]This is evident in the previously examined statements by Aristotle, Cicero and Plato.
In dividing morality from human nature, Finnis thus departs from the views held by traditional Natural Law theorists. His theory involves “the absence of a larger role for human inclination or human nature to play in his basic goods theory,”[106]a significant betrayal of the deviation his theory makes from those of his predecessors. Bix remarks on this deviation from traditional Natural Law, considering that “the majority position within the Natural Law tradition appears to be that moral truths are to be derived from truths about human nature.”[107]The ‘common thread’ on the place of morality within traditional Natural Law theory is therefore that it is sourced from human nature. Bix contrasts this with Finnis approach, asserting that the “minority position in the tradition, represented by, among others, Finnis…is that moral truths are to be discovered or derived in other ways.”[108]Hence, by locating morality in a place other than human nature, Finnis diverges from traditional Natural Law theory.
ELEMENT THREE: THE SEPARATION OF LAW FROM MORALITY
A significant characteristic of Finnis’ theory is that it “does not deny the thesis of the separation of positive law from morality.”[109]This is perhaps the most contentious element of Finnis’ legal philosophy, as it receives insufficient backing from traditional Natural Law theorists, offering a differing theoretical starting point from the traditional theories it has drawn inspiration from.
As previously examined in section 1, the bedrock of traditional Natural Law theory is an ideal indistinguishable from that of moral absolutism. The traditional Natural Law theorists and philosophers viewed the principle of justice as a fundamental ingredient of any valid law, thus tethering the validity of a law to its moral content. Vieru notes that “both Aristotle and Plato discussed law in reference to morality”[110], drawing an irrefrangible link between the two. Likewise, Aquinas “thought of morality as a matter of law”[111], echoing the beliefs of his antecedent Natural Law philosophers.
Whilst Finnis does not deny that morality may play an important part in law, he does offer a crucial distinction between legal obligation (which is “[derived] from the demands of custom, legal statutes, and court precedents”[112]) and moral obligation (which is “[concerned] with the demands of the basic goods and the requirements of practical reasonableness”[113]). Finnis proposes that “the moral obligation to obey each law is variable in force.”[114]The question then turns to “the issue of whether moral validity is a constitutive condition of legal validity.”[115]
For Finnis, a law which is just creates moral obligations, following with Aquinas’ teachings that laws with moral content are “bind[ing] in conscience.”[116]A law which is unjust then may not create moral obligations, depending on the type of injustice it harbours.
For Finnis, there are two types of injustice, extrinsic and intrinsic. Intrinsically unjust laws are “laws that directly attack one or more of the basic goods”[117]whereas extrinsically unjust laws are those “that attack the common good or fail to promote it in some way.”[118]Although Finnis draws a distinction between intrinsically unjust laws and extrinsically unjust laws, the two are inextricably linked. Intrinsically unjust laws are primarily concerned with the basic goods, which serve as a basis for achieving morality. Extrinsically unjust laws are primarily concerned with the common good, which Finnis offers as a definition formorality. Finnis argues that there is no moral obligation nor legal obligation to follow intrinsically unjust laws; there is no obligation to follow a law which inhibits one’s ability to achieve a moral aim. However, he argues that there may still be an obligation to follow extrinsically unjust laws; there may be an obligation to follow a law which is, by definition, immoral. He thus “holds that there is actually an obligation not to obey an intrinsically unjust law, but there may remain certain obligations to obey laws that are only extrinsically unjust.”[119]
Finnis argues that laws which are extrinsically unjust in the sense that they are created with “stipulations made for partisan advantage, or (without emergency justification) in excess of legally defined authority, or imposing inequitable burdens on their subjects, or directing the doing of things that should never be done, simply fail, of themselves, to create any moral obligation whatever.”[120]This is again in accord with Aquinas’ belief “that unjust laws do not create moral obligations.”[121]
Whilst these unjust laws may not impose moral obligations, Finnis goes on to argue that they may still impose legal obligations. He asserts that “a regime which enacts an unjust law may retain the power to enforce it and that the populace may recognise it as a law despite its injustice.”[122]Therefore, a law which is not moral may still be valid and impose obligations.
In Finnis’ theory, a law’s validity is therefore not contingent upon its moral content. To Finnis, an unjust law can be a law. It is interesting to note that Aquinas himself “acknowledge[d] the moral fallibility of law.”[123]On the one hand, this may be interpreted as Aquinas accepting that a law without moral content may still be given the title of ‘law’ and thus retain validity. This is indubitably the interpretation that Finnis took in constructing his theory. However, a differing interpretation may be made. Aquinas refers to a law’s “fallibility” or imperfection. It can be argued that this description points only to the inability of humans to correctly derive moral principles from human nature and the absolute values to which law is aimed at. Aquinas is merely asserting that in the process of the “evaluation of the content of laws against moral…principles”[124] the interpretation of human nature may be inexact. Hence, a law may be morally imperfect, without being completely destitute of morality. Finnis makes no such distinction, going even further to assert that a law which is destitute of morality can still be valid and impose obligations. Finnis consequently divorces law from morality.
Finnis’ separation of what is “morally desirable [from what is] legally obligatory”[125]creates a division between law and morality akin to the distinction made by Legal Positivists in their seperability thesis. Finnis argues that “the affirmation that ‘unjust laws are not law’…is [generally] a subordinate theorem of Natural Law theory.”[126]This view may prove damaging to Finnis’ theory, as the fact that “Hart and Finnis are in broad agreement over the distinction between law and morality”[127]illustrates Finnis’ divergence from traditional Natural Law theory.
H.L.A. Hart is a Legal Positivist. The central tenet of Legal Positivism is the seperability thesis[128], and it would therefore be erroneous, given the detailed accounts of the views of traditional Natural Law theorists provided above, to believe that “a natural lawyer can share in the affirmation of positivisms’ main point (namely, the conceptual independence of legal validity from moral value or merit.)”[129]Finnis endorsement of the separation of law and morals then begs a seminal question: is he to be considered a Legal Positivist or merely someone who “occupies a somewhat controversial and outsider’s position”[130]in Natural Law theory? The views of Matthew H Kramer, David Lyons and Neil MacCormick seem to support the former conclusion.
Kramer describes the seperability thesis as a “doctrine distinctively associated with legal positivism,”[131]propounded “in disputation with classical Natural-Law thinkers.”[132]Similarly, MacCormick notes that Legal Positivism “as a position in legal theory stands for the separation of law and morals,”[133]with Lyons observing that “the separation thesis is regarded as a dividing line in legal theory: Legal Positivists are supposed to accept it and Natural Lawyers to reject it.”[134]It is thus clear from the views of legal scholars that the separation of law from morality is betraying of a positivistic stance.
This separation of law from morality in Legal Positivism goes further. Legal positivists believe, as does Finnis, in separating legal obligation from moral obligation. Lyons writes that “legal positivists typically do two connected things that tend to confuse the general issue. On the one hand, they introduce the idea of a ‘legal obligation’, something that is automatically created by legal requirements and prohibitions, regardless of their moral quality and history and independent of the specific relations of the individual to the political system, while on the other hand they present morality in relation to law in such a way that either morality cannot be understood as meriting any respect or law must be thought to merit as much respect as morality.”[135]Although Lyons’ statement was made as a descriptive account of the view of legal positivists, it aptly describe Finnis’ view. It can thus not be ignored that Finnis shares a significant perspective with a school of thought that opposes Natural Law.
Lyon’s statement, along with the views held by Kramer and MacCormick and the works of legal positivists such as Hart, Austin and Bentham, support the conclusion that Legal Positivism’s main differentiating factor from Natural Law is its separation of law from morality. Francis Russel Hittinger, a staunch opponent of Finnis, thus “[denies] that Finnis is within the Natural Law tradition.”[136]This critique is easily accepted when Finnis’ theory is shown to support a thesis that characterises the main opponent of Natural Law.
Finnis’ departure from traditional Natural Law theory is most pronounced by his divorce of legal obligation from moral obligation. He renounces the traditional Natural Law doctrine lex injusta non est lex which runs as a common thread in the works of Plato, Cicero, Aquinas, Socrates and Aristotle, instead crafting a theory in which traditional Natural Law doctrines are combined with a positivistic principle that opposes the central tenet of traditional Natural Law.
CONCLUSION
As shown above, the question of John Finnis’ compatibility to traditional Natural Law theory may often rest on the interpretation of the works of his predecessors. Finnis, Bourke, Anscombe and Westberg have interpreted the works of Aquinas, Plato and Cicero in a manner which places reason, rather than morality, at the centre of traditional Natural Law theory. This paper has aimed to show that their interpretations of the views of Aquinas, Cicero, Plato, Socrates and Aristotle have either been carried out erroneously or with a biased inclination toward constructing Finnis’ own theory. In some cases, they have inflicted unintended meaning into the words of the philosophers. An example of this is their extension of Cicero and Aquinas’ statements on reason to the conclusion that reason is the central tenet of traditional Natural Law. In other cases, they have failed to prescribe accurate meaning to statements, such as their misreading of Aquinas’ statement that law is “nothing else than an ordinance of reason”[137]as meaning law is equivalent to reason. A final significant misstep carried out by Finnis is his neglecting the importance of the maxim lex injusta non est lex. This omission, alongside the interpretive differences between Finnis, Bourke, Anscombe and Westberg on the one hand and academics, scholars and philosophers such as Hittinger, Lyons, MacCormick, Kramer, Kenny and Nussbaum on the other, provide an overwhelming conclusion that Finnis’ theory diverges from traditional Natural Law theory.
The issue of whether there may be more than one correct interpretation is settled by reference to the primary intention of this paper: to determine the essence of traditional Natural Law theory. If there are said to be multiple principles which Natural Law theorists may use as a basis in constructing their theories, the entire school of thought would fail to have a cohesive form (or ‘common thread’) that defines it as Natural Law. As examined in previous sections, Plato, Cicero, Aquinas, Aristotle, Socrates, Blackstone and St Augustine each contributed to this common thread in their assertions of the necessity of a connection between morality and legality. Finnis is, as a consequence, the outlier in the school of thought. If his theory is to be deemed an absolute Natural Law theory, it would threaten to unravel the common thread that runs throughout history in the theories of those that came before him.
Theorists are not restricted from creating their own schools of thought in which they may amalgamate Naturalistic and Positivistic views, as Finnis has done. However, to be considered a traditional Natural Law theory, an ideology should adhere to the most paramount criteria, the union of law and morality. Other differences, such as in the source of morality, are differences in degree, rather than substance.
What produces the dividing line between traditional Natural Law theory and other schools of thought is, as shown, this juncture between law and the value of morality. An inspection of the place morality holds within the work of Finnis, as carried out above, displays not only his non-conformity to the lex injusta non est lex ideal but also his redaction of the necessity of morality. This leads to the conclusion that John Finnis’ theory diverges from traditional Natural Law theory.
SECTION FOUR: EVALUATION
Whilst it is concluded that John Finnis’ theory of Natural Law, as set out in Natural Law and Natural Rightsdiverges from traditional Natural Law theory, there still remains the question of whether traditional Natural Law is synonymous with Natural Law. The principles governing the relationship between law and morality in traditional Natural Law have been examined above. However, whether these principles must be adopted by modern Natural Law theorists is still a matter for debate, and a deliberation on whether the natural evolution of theories should be restricted by beliefs some may consider outdated may still be had.
On this discussion between traditional Natural Law theory and new theories of Natural Law, many view Finnis’ theory as a reconstruction of traditional Natural Law theory[138], christening it ‘New Natural Law theory’. In 2008, Thomas S Becker considered Finnis to “represent the New Natural Law school”[139], a school of thought which “originated in the early 1960’s as an alternative to the more traditional thinking on the natural moral law.”[140]Becker was echoing the views of Kevin M Staley who, fifteen years prior to Becker’s statement, affirmed that in Finnis’ work “Natural Law theory has seen something of a renewal.”[141]A more recent view of Finnis’ theory as a new incarnation of traditional Natural Law comes in 2011 from Nathanael Blake. In his paper, Natural Law and History, Blake writes about the “revival of…new natural law theory, of which John Finnis is the foremost champion.”[142]Whilst Blake does go on to critique elements of Finnis’ theory, a more scathing attack comes from Russel Hittinger, who “argues that the New Natural Law theory differs so profoundly from the old as hardly to deserve to be called a Natural Law theory”[143]in A Critique of the New Natural Law.
This treatment of Finnis’ theory as a new model of Natural Law has thus been performed both in appraisal and critique, with commentators divided on the merits of his work. As many regard Finnis’ theory as a new form of Natural Law, his divergence from traditional Natural Law theory is often considered a negligible and insignificant discussion. However, the consequences of Finnis’ reworking of Natural Law are critical.
THE CONSEQUENCES OF FINNIS’ NEW NATURAL LAW
PRO ONE — MORALITY
Finnis’ theory, as shown, places less emphasis on morality and moral absolutism than the theories of traditional Natural Lawyers. This can be seen to create two advantages. The first is brought to light when the location of morality within Finnis’ theory is examined.
Finnis, unlike his traditional Natural Law predecessors, does not locate morality within God, human nature or any other transcendent entity or ideal. However, as Charles E Rice observes, “if we are to rely upon the Natural Law as a justification for refusing to obey a law considered to be unjust, there ultimately must be some acknowledged arbiter of the meaning of that Natural Law.”[144]The arbiter in Finnis’ theory is not God, and this poses a distinct advantage. It is easier to find an arbiter in human authority than in God. Moreover, said authority can be held accountable. This is advantageous for social and political reasons, as citizens abiding by a legal system will have a defined entity to hold answerable for any failure to promote just and moral practices.
The second benefit of Finnis’ views on morality is that he renders law to be more than just a moral inquiry. Brian Bix proposes a lengthy discussion on this topic: “it is normally a mistake to try and evaluate the discussions of writers from distant times with the perspective of modern analytical jurisprudence. Cicero, Aquinas, and Grotius were not concerned with a social-scientific-style analysis of law…these theorists were concerned with what legislators, citizens, and governments ought to do, or could do in good conscious…one should not be too quick in comparing their answers with those in similar sounding discussions by recent writers, who see themselves as participating in a conceptual or sociological task.”[145]Finnis’ transformation of law into a socio-political entity thus allows an interdisciplinary approach to be taken to legal theory. This development of “intellectual interactions and exchanges”[146]is viewed by many, in particular professor at the University of Nottingham Paul Roberts, as favourable. In his Interdisciplinarity in Legal Research, Roberts considers the increase in cross-disciplinary legal scholarship as a practice that allows “two or more ‘disciplines’ [to work] together in a beneficial way.”[147]Cotterrell further affirms the advantages to an interdisciplinary approach as he notes that “law permeates all realms of social behaviour, its pervasiveness and social significance are felt in all walks of life…if we understand law as a social phenomenon we understand much about the society in which it exists.”[148]Hence, Finnis’ inclusion of a social aspect to law, rather than focusing solely on morality, may be of benefit to the modern aspiration of viewing law from a sociological perspective.
PRO TWO — COMPATIBILITY
In separating law from morality, Finnis’ theory is seen to not be compatible with traditional Natural Law theory. However, it may pose the consequence of being compatible with Legal Positivism, a school of thought which is long considered an opponent of Natural Law[149]. This consequence is considered, by a few, to be a positive, if unintended, repercussion.
Nathanael Blake seems to argue in favour of the compatibility of the schools in relation to the seperability thesis. He contends that Finnis’ “approach to Natural Law could prove valuable for Christian and non-Christian alike by providing common ground for many different philosophical schools.”[150]If this argument is taken further, Finnis’ work may be seen to create a bedrock of amalgamated beliefs that provides a foundation for new philosophical schools of thought to rise from. An advantage of Natural Law and Natural Rightsis therefore that it may lead to hybrid theories that may better suit the sociological, political and legal climates in effect today.
In his paper, On the Dividing Line Between Natural Law Theory and Legal Positivism, Brian Bix is also seen to support Finnis’ melding of the two schools. Bix maintains that “Finnis has not ignored the ‘debate’ [between Natural Law theory and Legal Positivism]; to the contrary, his work has offered many provocative ways of rethinking and recasting the lines of battle.”[151]This can be read as praise for Finnis’s ability to innovate and reshape the discussion between Natural Law theory and Legal Positivism, perhaps offering a theory that is in harmony with both schools of thought.
Commenting on this harmony, Pavone cites the compatibility of some of Finnis’ ideas with Hart, one of the most influential Legal Positivists to date. Pavone notes that in “following an exposition of the commonalities between Hart and Finnis’ theories of law, one might begin to wonder whether the Legal Positivism vs. Natural Law debate boils down to ‘much ado about nothing’.”[152]He therefore observes that Finnis’ new model of Natural Law, when read in conjunction with Hart’s work, may render the debate between the two schools of thought as inconsequential. This would save theorists much time and effort as they would no longer need to refer to the debate in the preamble to their works.
However, whilst Pavone sees similarities between the works of Hart and Finnis, Finnis himself is quick to criticise Hart’s work. In one revealing statement, however, Finnis makes clear his views on the compatibility of Natural Law and Legal Positivism. In his paper, Natural Law Theory: Its Past and Its Present, Finnis writes that “Hart’s characterization of his work as ‘positivism’ gets its meaning from the implicit contrast: positivism rejects ‘Natural Law theory’. But the contrast, like the rejection, is a blunder.”[153]Finnis thus discloses his belief that Legal Positivism does not reject Natural Law theory and, in reverse, Natural Law theory does not reject Legal Positivism. This seminal conviction can be argued to be auspicious for one important reason; to cease the debate between Natural Law theory and Legal Positivism would allow more focus and attention to be given to other matters.
CON ONE — DILUTION
Although some may see the compatibility of Legal Positivism and Natural Law theory as beneficial, a primary consequence of Finnis’ new model of Natural Law is that it poses the risk of diluting Natural Law theory with Legal Positivism, erasing the lines that have been drawn to divide the two. If, as argued above, the central tenet of Legal Positivism is the seperability thesis, a theory which claims to be in the school of Natural Law yet adheres to the seperability thesis blurs the lines of distinction between the two schools of thought. This is to be considered negative for practical reasons. A distinction between the two schools of thought facilitates a more methodized approach to analysing legal theories, seeing as “labels are so much a part of our common intellectual life it is almost as silly to flee as to hurl them”[154]and, as Bix argues, “life becomes too complicated if one cannot discuss individual views or events as the instance of a larger group.”[155]However, the merits of distinction go beyond reasons of mere simplicity.
An absolute contention that Finnis’ theory may cause traditional Natural Law theory to cease to exist would constitute an informal fallacy. However, it is arguably not fallacious to stress that its disbanding of a ‘common thread’ in Natural Law poses considerable consequences for both past and coming Natural Law theorists. By melding traditional Natural Law theory with Legal Positivism, Finnis on the one hand threatens to detract from the legacies of Aquinas, Plato, Cicero, Aristotle and Socrates, whose teachings on the central position of morality within a legal system have informed much of legal theory and philosophy today. A dilution of Natural Law with Legal Positivism would render their arguments of little more than conceptual worth as references to be made in a historical context. This would be a significant academic loss were the views of these prominent figures dethroned by Finnis. Moreover, Finnis creates an impediment to modern theorists who, adopting views of moral absolutism, may be left without a school of thought to categorise their theory into were Natural Law theory and Legal Positivism mingled. Whilst it was not Finnis’ aim to unite the two schools of thought, his theory does pose the risk of doing so, uncovering these consequences along the way.
CON TWO — THE SEPERABILITY THESIS
A crucial assertion which lays the foundation for the second consequence of Finnis’ theory is made by Leslie Green, who notes that “law is by no means a non-moral phenomenon.”[156]Whilst this is not disputed by Finnis, the extent to which morality plays a part in his theory can be criticised. The support that Finnis extends to the seperability thesis is not only in contravention of traditional Natural Law principles, it also presents a host of other issues.
The importance of morality within a legal theory will not be examined by resorting solely to the “rhetorical trope”[157]of Nazi laws and regulations. However, it is still important to briefly discuss the argument that the legal system in Nazi Germany relied upon the seperability thesis to enact innately immoral laws. Whilst this debate has subsided in recent times[158], the implications it has are still of consequence. Kramer argues that “the moral bearings of law are not inherent but are determined by its contingent substance and by the uses to which it is put in various settings.”[159]To argue this is to concede that law without an inherent morality that is objective can and willbe used in situations, such as Nazi Germany, where its substance may lead to iniquity and atrocities.
The value of a morality inherent to law is not restricted to merely the contentof any law, but also to the peripheral consideration of whether there is an obligation to follow unjust laws, as there was in Nazi Germany. Becker rightly argues that “Finnis’s position on whether to obey unjust laws may leave us with an uncertain moral foundation or no moral foundation at all.”[160]If an immoral law may pose just as much a duty to be followed as a moral law, the worth of a moral law is depleted. By giving the same amount of importance to immoral laws as he does to moral laws, Finnis inadvertently renders the morality of a law insignificant.
A further critique that can be made on the place of morality within Finnis’ theory comes from the lack of recognition given to human nature. Henry Veatch argues that “a moral theory that lacks adequate attention to human nature runs the risk of being too subjective.”[161]This notion of subjectivism is taken further by Rice, who insists that “if people could choose which laws they will regard as moral and therefore obey, the system will fall apart…it will be a legal Disneyland of eclecticism.”[162]By not rooting morality in principles or moral truths that are objective, Finnis thus renders morality to be an illusory concept that can be subject to manipulation, either by individuals to satisfy their personal agendas or by authorities to enforce subjective systems of operation. If the debate around Nazi laws is taken from the opposing angle as that previously employed, it can be argued that subjective morality fuelled the Nazi regime. A stance of moral realism, substantiated by objective moral truths derived from human nature may therefore prevent this dire consequence.
Whilst Finnis’ work may offer a modernized theory, ‘the contemporary’ does not always equate to ‘the best’. It is submitted that rather than attempt to modernise a theory to make it applicable in present-day circumstances, present-day circumstances should take instruction from antecedent theories in order to improve upon legal systems and prevent totalitarian regimes. Metaphysical inquiries, although looked upon with disdain, may offer solutions to the pressing issues that the world is faced with today. Though it may be considered quixotic to posit moral realism and absolutism as the solutions to issues such as political corruption and humanitarian atrocities, it is by no means erroneous to allege that the law plays a crucial part in mitigating the risk of barbarity and punishing wrongdoers. However, this may be improved upon by employing the maxim lex injusta non est lex. Legislative instruments such as France’s LOI n2010–1192 could therefore utilise the transcendent principle of justice to combat oppression and unfairness and realise a moral outcome. As MacCormick notes, “law and morality do not only share a vocabulary and a set of concerns; the concerns they share are supremely practical concerns for human beings.” These concerns can thus only be dealt with by placing morality as a paramount component of any human matter in a manner consistent with traditional Natural Law theory.
Moreover, Hart notes that “the necessary ties between law and morality…are readily acknowledged by any jurisprudential activist.”[163]This connection should be taken further so as to link the law as it ought to bewith the law as it is,allowing law to be developed to altruistic ends. It is interesting to note that this process is seldom neglected despite positivism’s aversion to it. Finnis himself acknowledges that makers of law inevitably consider moral concerns, looking to what a law ought to achieve.[164]This, in essence, is akin to a consideration of what the law as a whole oughtto be. Thus, the question of what a law oughtto be is a crucial component in constructing what a law is.
To go further and examine the aim of law as a whole is to recognise the importance of morality. Whether law is viewed through the Utilitarian lens that the likes of John Austin and Jeremy Bentham used[165], seen as a sociological analysis by Finnis and Hart, or considered akin to a transcendent entity through the teachings of Plato and Aquinas, the aim of law is often cited, in one way or another, as securing the common good. An investigation into what is goodinevitably requires a moral inquiry, as the two words are inextricably related if not altogether synonymous. Thus, from the inception of any theoretical examination of the law, morality is seen to play an indispensable part. It is submitted that this part, the morality of a law, is inherent to the law.
If a law is to be considered valid with morality coming in as an afterthought, the aim of law is diluted, often to immoral ends. The lone way to resolve this dilemma is by adopting the maxim lex injusta non est lex. By ensuring that a law is only valid if its moral content is satisfactory, the aim of law will be fulfilled andthe atrocities that obligatory immoral laws may engender will be prevented.
A NEW LIGHT FOR NATURAL LAW THEORY
Although Finnis’ theory diverges from traditional Natural Law theory, its presence and prominence may contribute to the rehabilitation of the image of Natural Law. In his paper, “Natural” Law Revisited, Ronald Dworkin affirms the necessity of this renaissance as he writes that “one label, however, is particularly dreaded: no one wants to be called a Natural Lawyer. Natural Law insists that what the law is depends in some way on what the law should be. This seems metaphysical or at least vaguely religious. In any case it seems plainly wrong. If some theory of law is shown to be a Natural Law theory, therefore, people can be excused if they do not attend to it much further.”[166]Much of this negative perception rests on the emphasis that traditional Natural Law theorists placed on transcendent principles. With Finnis offering a less abstract theory, one which may be grounded in socio-political rather than metaphysical principles, Natural Law may once again be offered a seat amongst respected legal theories, a view supported by a plethora of academics.
Blake in particular supports the notion that Finnis’ work provides a reformation of Natural Law, as he argues that the theory “buttresses itself against the sceptical critiques that had pushed the scholastic Natural Law tradition aside.”[167]Rice goes even further as to assert that “the value of John Finnis’ book is its rehabilitation of reason and Natural law as respectable topics for discussion.”[168]Likewise, Becker considers Finnis’ theory to provide a “novel philosophical perspective”[169]and asserts that “new insight into the resolution of old problems should be encouraged in the interest of philosophical progress.”[170]Blake, Rice and Becker, amongst others, view Finnis’ reconstruction of Natural Law theory as a development beneficial to the entire school of thought.
Moreover, Finnis himself believes that his work, along with those of Germain Grisez, will aid in the reclamation of Natural Law theory as he writes that “there is every reason to hope, and some reason to expect, that [this] recovery will continue and that the future of the philosophy of law will be mainly as a recognizably (even when unlabelled) Natural Law theory of positive law.”[171]Finnis here divulges one of the aspirations of his theory as being a recovery of the Natural Law school of thought. This is significant as it may lend a semblance of understanding to some aspects of his theory; his separation of law from morality and his neglecting human nature may have been done to provide Natural Law with a modern foundation that gives it equal footing against other schools of thought. However, it is important not to discard the consequences of Finnis theories, as examined above, and to remember the part that morality may play in bringing justice to the world.
[1]Peter Stein, ‘Interpretation and Legal Reasoning in Roman Law,’ (1995) 4:70 Chicago-Kent Law Review 1539 <https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=2999&context=cklawreview> 12 May 2018
[2]John Austin, The Province of Jurisprudence Determined, Wilfred E Rumble (ed) (Cambridge University Press, 1995)
[3]Wilfrid E Rumble, The Province of Jurisprudence Determined(Cambridge University Press, 1995) xxi
[4]Brian Bix, ‘On the Dividing Line Between Natural Law Theory and Legal Positivism’ (2000) 5 Scholarly Works Notre Dame Law School 1613 <https://scholarship.law.nd.edu/ndlr/vol75/iss5/2> 11 March 2018
[5]Bix (n 4) 1614.
[6]Bix (n 4) 1614 ; Joseph Raz, Postema on Law’s Autonomy and Public Practical Reasons: A Critical Comment, 4 Legal Theory 1,1 (1998)
[7]Bix (n 6).
[8]Lloyd L Weinreb, ‘The Moral Point of View’ in Robert P George (ed), Natural Law, Liberalism, and Morality(1996) 196
[9]Daniel N Robinson, ‘Weinreb’s Problems with Natural Law’ in Robert P George (ed), Natural Law, Liberalism, and Morality(1996) 214
[10]‘Morality’ (Merriam-Webster Dictionary)<https://www.merriam-webster.com/dictionary/morality> accessed 13 May 2018
[11]‘Moral’ (Merriam-Webster Dictionary)<https://www.merriam-webster.com/dictionary/moral> accessed 13 May 2018
[12]‘Obligation’ (Merriam-Webster Dictionary)<https://www.merriam-webster.com/dictionary/obligation> accessed 13 May 2018
[13]‘Legal’ (Merriam-Webster Dictionary)<https://www.merriam-webster.com/dictionary/legal> accessed 13 May 2018
[14]ibid.
[15]H L A Hart, The Concept of Law(Oxford University Press 1961) 1
[16]John Finnis, Natural Law and Natural Rights(Oxford University Press, 1980)
[17]Weinreb (n 8).
[18]‘Just’ (Merriam-Webster Dictionary)<https://www.merriam-webster.com/dictionary/just#h1> accessed 10 April 2018
[19]Philip Soper, ‘In Defence of Classical Natural Law in Legal Theory: Why Unjust Law is No Law at All’ (2007) 20 J L & Jurisprudence 206 <https://doi.org/10.1017/S0841820900005750> 12 March 2018
[20]Ronald A Dworkin, ‘”Natural” Law Revisited’ (1982) 34 University of Florida Law Review 165 <https://www.scribd.com/document/92184652/Dworkin-Ronald-Natural-Law-Revisited> 11 March 2018
[21]Brian Bix ‘Traditional Natural Law Theory’ 113 <http://drsjohnsoneducation.com/wp-content/uploads/2013/09/Traditional-natural-law.pdf>
[22]ibid [114].
[23]Soper (n 19).
[24]Soper (n 19).
[25]ibid [108].
[26]Finnis (n 16) 363; De libero arbitrio, I, v, 11
[27]David Lyons, Moral Aspects of Legal Theory(Cambridge University Press, 1993) 1
[28]Neil MacCormick, ‘Natural Law and The Separation of Law and Morals’ in Robert P George (ed), Natural Law Theory(1992) 106
[29]Weinreb (n 8).
[30]Bix (n 21) 114.
[31]Bix (n 21).
[32]ibid.
[33]MacCormick (n 25) 113.
[34]Cicero, The Republic and The Laws(Oxford University Press, 1998) 115
[35]ibid [116].
[36]Finnis (n 16) 363; Plato, Laws, IV: 715b
[37]Bix (n 4) 1615.
[38]Austin (n 2) 157.
[39]Jean Porter, Nature as Reason: A Thomistic Theory of the Natural Law(Wm. B. Eerdmans Publishing Co., 2005) 30
[40]Weinreb (n 8) 198.
[41]Finnis (n 16) 6.
[42]ibid [363].
[43]ibid [59].
[44]ibid [86–89].
[45]ibid [85].
[46]ibid.
[47]ibid [92].
[48]Porter (n 39) 38.
[49]Thomas S Becker, ‘John Finnis on the Obligation to Follow Unjust Law’ (DPhil thesis, Fordham University 2008) 4
[50]Finnis (n 16) 276.
[51]Tommaso Pavone, ‘Reading Finnis’ Natural Law in the Shadow of Hart’ (2014) 5 <https://scholar.princeton.edu/sites/default/files/tpavone/files/hart-finnis_debate_critical_review.pdf> 11 March 2018
[52]Finnis (n 16) 155.
[53]Charles E Rice, ‘The Problem of Unjust Laws’ (1981) 75 Scholarly Works Notre Dame Law School 279 <https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1074&context=law_faculty_scholarship> 11 March 2018
[54]Finnis (n 16) 360–361.
[55]Rice (n 53) 282 ;John Finnis, Natural Law and Natural Rights(Oxford University Press, 1980) 367
[56]Pavone (n 51) 3.
[57]Pavone (n 51) 3.
[58]John Finnis, ‘Natural Law Theory: Its Past and its Present’ (2012) 1085 Scholarly Works Notre Dame Law School 87 <https://scholarship.law.nd.edu/law_faculty_scholarship/1085> 11 March 2018
[59]Anthony Jannotta, ‘Plato’s Theory of Forms: Analogy and Metaphor in Plato’s Republic’ (2010) 28 Bridgewater State University Undergraduate Review 154 <https://vc.bridgew.edu/undergrad_rev/vol6/iss1/28> 13 April 2018
[60]Jannotta (n 59) 155.
[61]ibid.
[62]ibid.
[63]ibid.
[64]Plato, Republic(IDPH, 2002) 372
[65]ibid [389].
[66]Jannotta (n 59) 156.
[67]Finnis (n 16) 360.
[68]Rice (n 53) 283.
[69]Weinreb (n 8) 199.
[70]Tobias Hoffman and Jörn Müller and Matthias Perkams, Aquinas and the Nicomachean Ethics(Cambridge University Press, 2013)
[71]ibid.
[72]Interview with John Finnis (Oxford University Conversations, 2016) <https://www.youtube.com/watch?v=fnpnKQE_1G0> 10 February 2018
[73]Rice (n 53) 278.
[74]Porter (n 39) 37.
[75]Daniel Westberg, ‘The Relation of Law and Practical Reason in Aquinas’ (1994) 11 Cambridge Journal of Law and Religion 288 <https://doi.org/10.2307/1051622> 14 April 2018
[76]Simona Vieru, ‘Aristotle’s Influence on the Natural Law Theory of St Thomas Aquinas’ (2010) 1 The Western Australian Jurist 119 <http://www5.austlii.edu.au/au/journals/WAJurist/2010/5.pdf> 14 April 2018 ; Saint Thomas Aquinas, On Law, Morality and Politics(William Baumgarth and Richard Regan trans, Hackett, 1988) 17
[77]Westberg (n 75) 280 ; Vernon Bourke, ‘Was Aquinas a Natural Law Ethicist?’ (1974) 58 The Monist 66
[78]Vieru (n 76) 118 ; Vilho Harle, Ideas of Social Order in the Ancient World(Greenwood Press, 1998) 99.
[79]Westberg (n 75) 284.
[80]ibid.
[81]Interview with John Finnis (Oxford University Conversations, 2016) <https://www.youtube.com/watch?v=fnpnKQE_1G0> 10 February 2018
[82]Vieru (n 76) 119 ; Saint Thomas Aquinas, On Law, Morality and Politics(William Baumgarth and Richard Regan trans, Hackett, 1988) 17
[83]Vieru (n 76) 118 ; Vilho Harle, Ideas of Social Order in the Ancient World(Greenwood Press, 1998) 99.
[84]Vieru (n 76) 122 ; Daniel Nelson, The Priority of Prudence: Virtue and Natural Law in Thomas Aquinas and the Implications for Modern Ethics (Pennsylvania State University 1992) 32
[85]Westberg (n 75) 279 ; A Kenny, Will Freedom and Power(Oxford University Press, 1975) 71 ; Martha Nussbaum, Aristotle’s De Motu Animalium (Princeton, New Jersey: Princeton University Press, 1978) Essay No 4, 165
[86]Vieru (n 76) 115.
[87]Vieru (n 76) 122 ; John Finnis, Natural Law and Natural Rights(Oxford University Press, 1980) 23–4
[88]Porter (n 39) 38.
[89]Bix (n 21) 114.
[90]Becker (n 49) 15 supra note 12.
[91]Christian Daru, ‘Written on the Heart: On the Grounds of Moral Obligation in Natural Law Theory’ (2017) 78:3 International Journal of Philosophy and Theology 205 <https://doi.org/10.1080/21692327.2017.1306720> 11 March 2013
[92]ibid.
[93]Becker (n 49) 15 supra note 12.
[94]Finnis (n 58) 85.
[95]Becker (n 49) 12.
[96]Becker (n 49) 15.
[97]Finnis (n 58).
[98]ibid [90].
[99]Becker (n 49) 15 supra note 12.
[100]Soper (n 19) 203.
[101]Finnis (n 58) 93 ; Aristotle, Rhetoric1373b2–15
[102]Vieru (n 76) 117.
[103]Vieru (n 76) 118 ; Vilho Harle, Ideas of Social Order in the Ancient World(Greenwood Press, 1998) 99.
[104]Plato (n 64) 360.
[105]Bix (n 4) 1614–15.
[106]Becker (n 49) 8.
[107]Bix (n 4) 1615.
[108]Bix (n 4) 1615.
[109]MacCormick (n 25) 108.
[110]Vieru (n 76) 116.
[111]Westberg (n 75) 281
[112]Becker (n 49) 5.
[113]ibid.
[114]Finnis (n 16) 318.
[115]Philip Anthony Harris, The Distinction Between Law and Ethics in Natural Law Theory(The Edwin Mellen Press, 2002) 1
[116]Lyons (n 28) 70.
[117]Becker (n 49) 4.
[118]ibid.
[119]Becker (n 49) 5.
[120]Rice (n 53) 281 ; John Finnis, Natural Law and Natural Rights(Oxford University Press, 1980) 360–61
[121]Soper (n 19) 202 ; John Finnis, Natural Law and Natural Rights(Oxford University Press, 1980) 363–66
[122]Rice (n 53) 281.
[123]Lyons (n 28) 71.
[124]Vieru (n 76) 115.
[125]MacCormick (n 25) 107.
[126]Rice (n 53) 278 ; John Finnis, Natural Law and Natural Rights(Oxford University Press, 1980) 351
[127]Pavone (n 51) 2.
[128]Matthew H Kramer, Where Law and Morality Meet(Oxford University Press, 2004) 231 ; Jules Coleman, The Practice of Principle (Oxford University Press, 2001) 104 n4
[129]MacCormick (n 25) 110.
[130]Bix (n 4) 1613.
[131]Kramer (n 128) 223.
[132]ibid.
[133]MacCormick (n 25) 107.
[134]Lyons (n 28) 64.
[135]ibid.
[136]Bix (n 4) 1617 supra note 16.
[137]Vieru (n 76) 119 ; Saint Thomas Aquinas, On Law, Morality and Politics(William Baumgarth and Richard Regan trans, Hackett, 1988) 17
[138]Kevin M Staley, ‘New Natural Law, Old Natural Law, or the Same Natural Law’ (1993) 38 American Journal of Jurisprudence 109 <https://doi.org/10.1093/ajj/38.1.109> 12 March 2018
[139]Becker (n 49) 2.
[140]ibid.
[141]Staley (n 138).
[142]Nathanael Blake, ‘Natural Law and History: Challenging the Legalism of John Finnis’ (2011) 24:1 Natural Law and History, The Catholic University of America 101 <https://css.cua.edu/wp-content/uploads/2017/09/natural-law.pdf> 19 April 2018
[143]Staley (n 138).
[144]Rice (n 53) 284.
[145]Bix (n 21) 115.
[146]Paul Roberts, ‘Interdisciplinarity in Legal Research’ in Mike McConville and Wing Hong (eds), Research Methods for Law (Edinburgh University Press, 2017) 93
[147]ibid [92].
[148]Robert Reiner, ‘Classical Social Theory of Law’ in James Penner and David Schiff and Richard Nobles (eds), Introduction to Jurisprudence and Legal Theory: Commentary and Materials (Oxford University Press 2005) 230
[149]Bix (n 4) 1613.
[150]Blake (n 142 101.
[151]Bix (n 4) 1613.
[152]Pavone (n 51) 3.
[153]Finnis (n 58) 99.
[154]Dworkin (n 20).
[155]Bix (n 4) 1614.
[156]Kramer (n 128) 225.
[157]Weinreb (n 8) 197.
[158]David Fraser, Law After Auschwitz(Caroline Academic Press, 2005) 21
[159]Kramer (n 128) 244.
[160]Becker (n 49) 4.
[161]ibid.
[162]Rice (n 53) 280.
[163]Kramer (n 128) 227.
[164]Bix (n 4) 1620.
[165]Austin (n 2).
[166]Dworkin (n 20).
[167]Blake (n 142 101.
[168]Rice (n 53) 283.
[169]Becker (n 49) 1.
[170]Becker (n 49) 1.
[171]Finnis (n 58) 101.