A modern Natural Law theory by Finnis

A van Blerk: Jurisprudence, Butterworths, 1998
(Footnotes removed)

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p114
3 John Finnis - A theory of natural law

Lloyd L Weinreb describes John Finnis’ Natural Law and Natural Rights as the
most substantial and serious work of its kind in the contemporary theory of
natural law. Finnis denies that his work is particularly original, and acknowl-
edges the debt his natural law theory of morality bears to his colleague Ger-
main Grisez, especially Grisez’s grasp of Thomas Aquinas’ theory of practical
rationality.

p 115

Finnis’ work has also been lauded for its great readability and human quality.
“To Finnis, life is not bare material existence ... [it is] the crafty struggle“ and
prayer of a man overboard seeking to stay afloat until his ship turns back to him"
The vitality of 'Finnis’ work is well-illustrated by his whimsical reference
to sex as a “recreational activity [play]” or “a cementation of relationships
[sociability, friendship] ”, or his statement that an element of play [activities
that are pointless except for their own sake] can enter into any human activity,
even the drafting of enactments”.

Finnis has successfully eluded two traditional criticisms levelled at natural law
from the time of Hume onwards: firstly, that “an unacceptable sleight of hand” is
characteristic of attempts to deduce what ought, morally speaking, to be, from
an examination of what is. As noted in chapter 1, natural law usually seeks to
infer its moral principles from the natural order - reasoning, or speculation about
what nature was before society or government came into existence. Finnis
differs with this traditional position. He does not agree that natural law proceeds
from objective, discernible patterns of behaviour, but suggests that it comes from
an intrinsic knowledge, an intuition (what is “self-evident”) which is admittedly
subjective and needs no external justification. He further contends that just
because consensus upon ultimate values is difficult to realise does not mean that
those ultimate values do not exist.

Secondly, while it has been traditionally assumed that natural law does not
recognise a law as law if it is in conflict with a precept of natural law, Finnis does
not venture into the territory of the legal validity of rules. Once again he avoids
any confrontation with positive law. In this regard, he reminds critics that natural law
theory is based on the ideas of Thomas Aquinas and his predecessors and
that, they did, in fact, recognise the legal validity of unjust laws. Natural law,
therefore, is not so distant from the positivist theorists and Hart’s rules of recog-
nition. To be sure, Finnis states, Aquinas did say that if laws contradicted the
law of God one should obey God’s law rather than human law; however, where a
law is rendered unjust merely because it offends the common good, for example
by unjustly burdening a certain portion of society, then it might be better simply
to obey. Aquinas’ rationale was that even if they do not impinge upon matters of
conscience, laws should be obeyed wherever possible in order to prevent civil
order being undermined by setting a precedent of disobedience.“

The distillation of guiding principles is Finnis’ individual contribution to mod-
ern natural law theory, and offers something more than the earlier efforts to find
what morally ought to be from speculation about what is. Natural Law and
Natural Rights, for all John Finnis’ modest disclaimers, is therefore a dynamic
contribution to natural law theory.

Finnis opens his treatise with the theme which is at the heart of his theory,
namely, that there are “basic forms of human flourishing” or “human goods”,

p116

and that there are “requirements of practical reasonableness” that can be satis-
fled only by the institutions of human law.”

The “basic human goods” are those things which human beings naturally
value. Finnis notes that, regardless of human cultural diversity, any survey of
anthropological literature will reveal certain basic concerns common to all
peoples. These basic concerns are drawn together by Finnis into a model of
seven ‘basic forms of‘human flourishing”, forms of good so basic that they
cannot be reduced any further. Finnis regards these “goods” as “self-evident”.
This is demonstrated by, though not inferred from,“ the fact that they appear
and are consistently valued in all human societies, for example, the respect for
human life.

3.1 Seven basic human goods or forms of human flourishing

(a) Knowledge

Finnis interprets the human good of knowledge to be knowledge that is sought
for its own sake, as opposed to the expedient pursuit of knowledge in order to
survive, to become powerful or popular. He refers to a “pure desire to know”,
not for gain, but out of a care for truth and a desire to avoid error and igno-
rance.

The “good” lies not in the discovered truth, but in the “activity of trying to find
out, to understand, to judge matters correctly", in the motive, the curiosity and
in the quest itself. “What did the authors of the Fourteenth Amendment care for
economic equality?” he asks. “What happened on the night of the murder? Does
e = mc2 ?”; “How does this clock work? It would be good to find out”. Human
curiosity is a good which does not pertain only to “the intellectual cathedrals of
science, mathematics and philosophy", but to anything from detective novels,
daily newspapers, to gossip - anything which satisfies and interests the knowl-
edge‘gathering characteristic of people.44 No longer wishing to know is tanta-
mount to suicide.

Finnis goes on to say that the good of knowledge is quite obvious and self-
evident, and although it cannot be demonstrated, “it needs no demonstration”.
Clearly, the position of a well-informed man is more advantageous than that of
an ignorant, confused or deceived man. The principle that truth is worth
pursuing is, says Finnis, an underived principle.

Neither its intelligibility nor its force rests on any further principle . . . For in every
field there is and there must be, at some point . . . an end to derivation and infer-
ence. At that point we find ourselves in face of the self-evident, which makes im-
possible all further inferences in that field.

p 117

(b) Life

Finnis regards life as comprising all the facets of human vitality which well
prepare a person for “self~determination”. It embodies the instinct of self-
preservation and the instinct to preserve the human specres by procreation.
The “urge to copulate”, Finnis suggests, is part of the good of life and of the
further goods listed in paragraphs (c) and (e) below.

(c) Play

The pleasure derived from play, that is, any activity enjoyed for its own sake,
is a good, and one which holds a special place in Finnis’ conclusions.

(d) Aesthetic experience

This good signifies the experience and appreciation of natural or human
creations, whether by the creator or the spectator/participant.


(e) Social ability or friendship

Finnis notes that friendship, even with only one other person, is a “funda-
mental form of good”. lt is an essential element of “human flourishing”, and
creates peace and harmony from its looser form in human community to its
“strongest form in the flowering of full friendship”. The good of friendship lies
in "acting for the sake of one's friend's purposes, one's friend's well-being".

(f) Practical reasonableness

The basic good of practical reasonableness means applying human intelligence
to one’s individual choices, way of life and character, and this requires
“freedom . . . reason, integrity and authenticity”.


(g) Religion

Finnis knows that many would hesitate to include religion as a human good,
but he employs this good to refer to the importance of determining for oneself
questions of the universal order of things - even if the answer is negative or
agnostic. The possibility of a transcendental origin for such order cannot be
excluded, and should it exist, one’s life should be “brought, [as best it can],
into some sort of harmony with whatever can be known or surmised about
that transcendental other and its lasting order".


p118

The seven basic human goods listed by Finnis by no means encompass all the
forms of good, but, Finnis emphasises, they are the basic goods, and analysis
proves that all the other forms of good are simply ways of attaining the seven
basic goods. Thus, such human qualities as generosity, restraint, courage, are not
basic values but means to acquire them.

Finnis does not structure his seven goods into any order of priority or rank. He
regards them all as equally important, and whichever is in focus at the time may
be considered the most important.

The basic goods are in no way derived from human inclinations, for these can
include harmful urges such as greed or cruelty. Such harmful urges cannot be
upheld as self-evidently good in the same way that self-preservation is obviously
a good necessary to human life. Greed and cruelty would require much explana-
tion as examples of good, whereas curiosity and friendliness do not.

3.2 The requirements of practical reasonableness
(methodological principles for practical reasoning)

“Practical reasonableness” serves two purposes in Finnis’ system. As shown
above, the first is its existence as a human good, and the second is its applica-
tion to the process of reasoning. It distinguishes practical from impractical
thinking, and offers the standard for knowing which acts are “reasonable-all-
things-considered (and not merely relative-to-a-particular purpose) and which
acts are unreasonable-all-things-considered”. In this way, practical reason-
ableness is applied to practical decisions, such as the attainment of the human
goods.

The essential purpose of the tests of practical reasonableness devised by Fin-
nis is connected to the general methodology of classical naturalist philosophy in
that it brings moral and ethical criteria to bear upon actions and their conse-
quences; as Finnis says:

[These] requirements...express the "natural law method" of working out the
(moral) "natural law" from the first (pre-moral) "principles of natural law"...
[This concerns] the sorts of reasons why (and thus the ways in which) these
are things that morally ought (not) to be done.


Finnis has devised nine tests of practical reasonableness and they are as
follows: ‘

(a) Finnis borrows Rawls’ turn of phrase when he requires a "rational plan of
life” as an element of practical reasonableness. This does not mean fool-
hardy and impractical dreams, but meaning commitments based upon
“harmonious . . . purposes and orientations”.





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(b) Commitment to a rational plan of life entails a balanced regard for all the
basic goods and not overrating some at the expense of others. This does
not require that the goods be pursued equally, for a scholar may naturally
be more attracted to the pursuit of knowledge than to the pursuit of
friendship. A person would, nonetheless, regard all the basic goods as
equally valid and not entertain arbitrary preferences between them. It is
upon these grounds that Finnis criticises Rawls’ “thin theory of good”, as
limiting the proper range of goods that should be taken into considera-
tion.“

(c) The principle that there must be “no arbitrary preferences amongst per
sons” may be summed up in the words do unto others as you would have
them do unto you, and do not hinder others from attaining that which you
yourself seek. This Finnis says, is a requirement of reason because if it is
ignored, it results in arbitrariness between individuals. This test of practi-
cal reasonableness would thus banish irrational discrimination and preju-
dice based upon such criteria as race or gender.

(d) The fourth test of practical reasonableness is detatchment This quality
allows responses which are appropriate and adaptable to the dynamic cir-
cumstances and needs of both oneself and others.

(e) A sense of commitment is further evidence of the presence of reason.
Finnis distinguishes between obsession or fanaticism and “dropping out”.
Rather there must be a healthy sense of loyalty to one‘s objectives.

(f)Efficiency within reason is a further requirement in that it provides that
one’s actions should be well enough designed for their purposes to achieve
some good in one’s own life and that of others. However, like commit-
ment, efficiency should operate in moderation and not be taken to unrea-
sonable and immoral lengths.

(g) The seventh requirement is ethical for it demands that no act which
of itself causes harm should be allowed, even if the effect of the act brings
about some good which is judged to outweigh the harm caused. In other
words, the end does not justify the means and “evil may not be done that
good might follow therefrom" The essence of this requirement is that
every act performed must respect every basic good. This means that ulti-
mately no choice which violates any basic good should be exercised.

(h) Another test of practical reasonableness is to promote and nurture one's
own communities, and thus place moral relations in their broader social
context.


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The last test is that of one's own conscience. Admittedly, one’s conscience
may be tragically mistaken, but in agreement with Aquinas, Finnis con-
cludes that at least a mistaken conscience should be respected as “an as
pect of personal full-being”, for when a person, mistakenly or not, goes
against his conscience, he has, in his own eyes, acted immorally. This
particular test of reasonableness is, however, limited by the second, third
and eighth tests. Thus, a person whose conscience might justify genocide
could not in the light of these other tests reasonably act upon the guidance
of his conscience.

Finnis holds that these nine tests of practical reasonableness, together with the
seven basic human goods, combine to provide a functional structure of natural
law which would prevent flagrant injustice and create a model of basic human
rights. The tests are guidelines for human behaviour and a process for reach-
ing sound and reasonable judgments and decisions. These requirements of
practical reasonableness embody the content of natural law and what Finnis
considers morality to be. They are the moral reasons for why things ought to
be done, or not done; each of the nine tests is “a mode of moral obligation”.

It is apparent, therefore, that Finnis’ model forms a greater part of the main-
stream naturalist argument than, for example, the procedural natural law pro-
posed by Lon L Fuller.

3.3 Natural law and man-made law: The obligation to obey

Man has a purpose, Aquinas argued, and human affairs (including human
laws) "Should be so ordered as to achieve that purpose. Human laws which
parallel natural law - for example, the offence of murder parallels the natural
law tenet of respect for life - borrow part of their authority from natural law.
Accordingly, for Finnis, there are certain goods and principles which encour-
age “human flourishing". Human laws should therefore apply the universally
valid requirements of reasonableness, although “the effort to integrate these
. . . into [man-made law] will require of judge and legislator countless elabora-
tions”.

Where do unjust laws fit into Finnis’ scheme of things? Finnis makes a subtle
analysis of the obligation to obey law compared to other theories of law, in
particular classical positivism.

The Thomist tradition is that an unjust law is not law - lex injustia non est lex -
but with the cautionary proviso of Aquinas that, nonetheless, obedience to
certain unjust laws would be preferable to the risk of losing respect for the
principle of obeying the law as such.

Finnis also believes that natural law theory need not hold as its principal con-
cern the view that unjust laws are not law, but should rather concentrate upon
ways to derive “sound laws from unchanging principles that have their
force from reasonableness, not from any originating acts or circumstances"


p121

Although he does not examine the validity or otherwise of unjust laws, Finnis
does deal with a closely related and practical issue. The issue is whether, in a
predominantly just legal system, an individually unjust law commands an equal
moral obligation of obedience from the citizen as do the just laws. Finnis states
that since a ruler’s authority to direct and make laws stems from the needs of
the common good, any exercise of his authority which harms that common
good, or offends any of the principles of practical reasonableness, lacks the
authority it would otherwise have possessed and he therefore forfeits his right to
be obeyed. Finnis does, however, echo the Thomist opinion on this matter with
his own proviso: When a citizen publicly ignores or breaks an unjust law, he may
jeopardise the general respect his fellow citizens hold for the authority of a
generally good ruler or constitution, and thus threaten the legal system as a
whole. There may, therefore, be an obligation to obey an unjust law insofar as
such obedience prevents the law as a whole being brought into contempt. The
ruler has a strict obligation to repeal unjust laws and in this respect has no right
to expect them to be obeyed, but, “the citizen, or official, may meanwhile have
the diminished, collateral, and in an important sense extra-legal, obligation to
obey it”.

3.4 From natural law to natural rights

Finnis regards natural rights and human rights as indistinguishable from one
another, because human rights flow from natural law. Finnis’ argument here is
basically that as any choice which infringes the basic goods is wrong, so the
obligation to respect these goods gives rise to human rights which cannot be
infringed.

Finnis outlines the following rights as flowing from the seven basic goods:

(a) not to be deprived of life as a direct means to an end;

(b) not to be deceived in the course of factual communication;

(c) not to be condemned upon charges which are known to be false;

(d) not to be denied procreative capacity, and

(e) to be accorded “respectful consideration” in any assessment of the com-
mon good.

3.5 The eternal and universal nature of natural law

Natural law has always been characterised as eternal and universal, and Finnis
is convonced that the principles of natural law hold good no matter to what
extent they have been disregarded, manipulated or misused. They hold good
in the same way that mathematical principles of accounting remain sound
“even where, as in the medieval banking community, they are unknown or
misunderstood”

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3.6 Does Finnis make an unacceptable leap from
an “is” to an “ought”?

Natural law has been taken to task from the time of Hume for making what is
perceived as an inexplicable leap from the description of human behaviour
(the “is") to a description of human behaviour as it morally “ought” to be.
Hume pointed out that while reason can suggest the means to attain our
desires, it cannot tell us what we ought to desire, and thus, Hume argued,
natural law disregarded the fact that people often want what they ought not to
want.

Finnis denies that either he, or earlier natural lawyers have ever made any
such illogical jump from what is to what ought to be, or even found it necessary
to do so. The principles of natural law are the principles of logic itself, or
"practical reasonableness” as he terms it. And reasonableness is not a product of
human existence, but, like a mathematical principle, it pre-exists humanity.

In practice, his reasoning is that if a certain human good, A, may at a particu~
lar time be best served by doing X, then it follows, as a matter practical reason~
ableness, that X ought to be done. Finnis points out that the “logical necessity
that X ought to be done stems from reasonableness, not from the fact that the
good happened to be A”. This thinking, according to Fi‘nnis, underlies the doc-
trine as put forward by Thomas Aquinas.


3.7 The leit-motiv of the book

His book, Finnis explains, is an exposition of a theory of natural law, “but is
not about that theory” It takes cognisance of other theories only insofar as
they clarify the theory he expounds or show why some truths about natural
law have sometimes been obscured. The book does not aim to discuss the
conservative or radical influence of natural law upon Western politics; or the
suspected psychological roots of the doctrines of natural law; or to trace the
ways in which it has been employed by ecclesiastical forces. The reason Finnis
gives for excluding all these aspects from the purpose of his book is simply
that they are issues which do not have “any real bearing on the question
whether there is a natural law and, if so, what its content is”. As one author,
borrowing Kelsen’s turn of phrase, has stated, the book offers a “pure” theory
of natural law.

Finnis holds the view that the purpose of natural law is to give us a rational
blueprint for moral judgments.He avoids placing his theory upon a religious
foundation, and offers. it, without rerence to the existence, nature or will of
God, as a purely secular theory. Finnis lets his theory rest on the “facts of
logic“, but he does not'stop there. He goes beyond theory to ask “the ultimate
question".

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3.8 The ultimate question

The pageant of the human race down through the ages, comprising countless
individual lives and communities, many of whom were utterly unaware of one
another for reasons of “time or distance”, provokes Finnis to ask whether
there is any ultimate point to the realisation of one's indivual good and the
well-being of one’s communities, and does it play any significant part in a
larger scheme of good? What in other words is the object of human experience
taken as a whole?'

In his search for an answer to this question, Finnis devises a theory of first
causes. Thus,if one tracks the causes of all things, one finally reaches a “state of
affairs” that does not possess a cause because it is “uncaused”, although it
causes all other states of affairs. He calls this “uncaused causing”, D, which exists
by being what it is and what it is makes “all other states of affairs to exist”.

One cannot go back further than this point, Finnis says. However, it might be
assumed that in the process of causing all that is caused, D makes choices
between innumerable options, somewhat like the human exercise of free
choice. It follows that D might possess knowledge of the options available when
it decides which course to set in motion, and therefore, it might be speculated
that D “acts and knows”. This leads to the thought that D might be capable of
communication or self-disclosure, and whether such communication or disclo-
sure does take place depends upon fact, experience, history and, indeed, faith.

Finnis reminds us that the early Greek philosophers, especially Plato and Aris-
totle, who initiated natural law thinking did not surmise that God had revealed
himself to humanity, but they did conceive that we can, through philosophical
meditation, come to know “the transcendental source of being, goodness and
knowledge”.

The question still remains, however, of the point of ethics, and this point
would necessarily hinge on the existence of a connection between human
rationality and the entity known as D. Why should we observe the principles of
practical reasonableness? Many reasons of immediately selfish nature may be given,
for example: to respect the moral code of one’s group in order to remain
accepted, and thereby to escape retribution or exclusion; to ensure the goodwill
of others for possible future advantage or gain; to win Heaven and immortality.
Nonetheless, why? Does the obligation to be ethical exist, and if so, where does it
come from? What good comes to oneself from self-sacrifice and to ’what pur
pose? What point is there in conforming to the “principles and requirements of
practical reasonableness”

p124



Finnis answers these questions by examining the possible nature of D the
uncaused cause. D may exist in the way that an individual human being exists,
and if this is so, then a question like “Why should I place the common good
above my own interests?” might be answered: out of love and friendship for D,
as the source of human well-being and as a phenomenon which “positively
favours (though in ways often unintelligible to us) that common good”. The
question of self-sacrifice is therefore answered by Finnis as follows: the meaning
of altruistic self-sacrifice would lie in seeing others

. . . as persons whose good is favoured also by one whose own goodness is unre-
stricted and whose love is no way blind but rather is given knowing fully the true
worth and all-explaining point of everything, of the existence of every person, and
of the history of every community.”

Finnis does not provide us with the origin of human moral obligations in terms of
some binding authority, but he comes as close as we are ever likely to come
to resolving this eternal riddle. A reason for putting others before ourselves
may not exist, but there may yet be a point in doing so. The point of the
principles of practical reasonableness, which give rise to our obligations, ”is
“the game of co-operating with God”. This forms a part of play, and therefore
has no point beyond itself, although it maybe that “God is the ultimate “point”
of that co-operation. However, God is not the point in the sense that we must
act for his" sake as if He needs us, “the success of [his] creation”, in any way,
for as the uncaused cause or D, God “needs and lacks nothing”. Why God
creates is not known, but Plato would attribute the motive to play: “a free but
patterned expression of life and activity, meaningful but with no further
point“. Therefore, any human relationship with God would entail sharing, in
some way, “in the divine play”

Therefore, the requirement of practical reasonableness are not catagorical imperatives;
they are the equipment needed to participate in the game of God.

Our agreement or disagreement with Finnis’ conclusion is for each of us to
decide, but his conclusion embraces the existence of God, however conceived, if
we think that God is not a reality of the human condition, then we must decide
alone whether moral obligation still exists, and if so, where this obligation comes
from.

p125

3.9 The importance of Finnis’ theory

The theory of natural law proposed by John Finnis belongs in the centre of
naturalist philosophy. lt borrows freely from the philosophy of St Thomas
Aquinas, and yet remains original and relevant to modern needs, especially
with regard to the modern discourse of rights. Finnis has played no small part
in the contemporary revival of natural law and has achieved this without any
negation of, or attacks upon, other schools of jurisprudential thought; rather,
he has independently attempted to adjust the bias present in traditional juris-
prudence from the middle of the nineteenth century to the present.