Jurisprudence

Finnis, Natural Law and Natural Rights

In Chapter I, Finnis considers the methodological problems in

formulating a jurisprudential theory.

Pages 3-11
What does Finnis mean by the question: How does the theorist
decide what is to count as law for the purposes of his description?
(p.4)? How is this question relevant to the works of other theorists
we have studied during the year? What does he mean by
explanatory power (p.6)? According to Finnis, how does Hart pay
attention to the practical point of law (p.7)? Why, according to
Finnis, do different theorists who purport to give non-evaluative
descriptions differ in their descriptions (p.9)? Explain what is meant
by the following terms: differentiated description of law, ideal
type, central case, focal meaning, univocal meaning of
theoretical terms, secondary meanings (pp.9-11).

Pages 11-19
What does Finnis mean by practical and practical
reasonableness (p.12)? What is meant by descriptive explanatory
priority(p.12)? To whose concerns and evaluations, according to
Finnis, does Hart give descriptive explanatory priority (p.12)? Why
are the positions of Hart and Raz unsatisfactory? (p.13-14) What
does Finnis say should be the central case of the legal viewpoint?
Why? (pp.14-15) Why must the theorists own views on practical
reasonableness inform his/her selection of the central case of the
legal viewpoint (pp.15-16)? What does Finnis mean by the point of
reflective equilibrium in descriptive social science (pp.17-18)?
In Chapter II, Finnis considers a number of traditional objections to
natural law theory. In Chapter III, he begins to articulate his theory
of natural law. This is central to his jurisprudence for, as we saw in
Chapter I, Finnis maintains that the theorists own views on practical
reasonableness are indispensable to the descriptive social science
of jurisprudence. In Chapter III, Finnis seeks to demonstrate how
speculative knowledge is a basic good.

Pages 59-69
In what sense does Finnis neither make nor presuppose any moral
judgments in this chapter (p.59)? What is the difference between
speculative knowledge and instrumental knowledge (pp.59-60)?
How does one move from particular curiosity to a grasp of
knowledge as a general, basic good (pp.60-61)? In Finniss view,
how does one participate in the value of knowledge (pp.63-64)? Why
does Finnis conclude that the good of knowledge is self-evident
(pp.64-69)? Explain the distinction that Finnis draws in the second
paragraph on p.65. What three propositions about a principle are
not entailed by it being self-evident (p.68)? What does it mean to
say that the good of knowledge is an underived principle (p.69)?

Pages 73-75
Why is any argument raised by the sceptic self-defeating?

In Chapter IV, Finnis sets out the other six basic, self-evident goods.

Pages 81-90
What are the other six basic, self-evident goods? Why does Finnis
not count procreation as itself a basic good (pp.86-87)? What does
Finnis mean by practical reasonableness (pp.88-89)? What does
Finnis mean by religion? Does it capture anything not captured by
the good of knowledge (pp.89-90)?

Pages 90-97
What does Finnis mean by saying that there are countless aspects of
human self-determination and self-realisation that are ways (not
means, but modes) of pursing the basic values (pp.90-91)? Why
does Finnis conclude that the seven basic goods are all of the basic
purposes of human action (p.92)? What is meant by the contention
that all the basic goods are equally fundamental (pp.92-93)? Why
does Finnis reject the idea behind the experience machine (pp.95-
97)?

In Chapter V, Finnis considers the requirements of practical

reasonableness. Practical reasonableness, one of the seven basic
goods, is of central importance for Finnis. Practical reasonableness if
morality; it structures humans pursuit of the seven basic goods.

Pages 100-110
What, for Finnis, is the primary respect in which we can call
ourselves both free and responsible (p.100)? What does Finnis
mean by requirements of method in practical reasoning? What
three things do these requirements entail? (pp.102-103) Why should
we develop a coherent plan of life (pp.103-105)? How can we ensure
that our preference among the seven basic values is not arbitrary
(p.105)? What does Finnis mean by no arbitrary preferences
amongst persons (pp.106-109)? What does Finnis mean by
detachment and commitment (pp.109-110)?

Pages 111-124
Why is efficiency a requirement of practical reasonableness (p.111)?
Why is utilitarianism (roughly, the greatest happiness of the greatest
number) or consequentialism (roughly, assessing the
worthwhileness of a course of action by reference to its
consequences) irrational as a general strategy of moral reasoning
(pp.112-118)? What is meant by the requirement that one show
respect for every basic value in every act (pp.118-119)? How and
why is damaging a basic good indirectly different from damaging
that basic good directly (pp.119-122)? What does Finnis see as the
principal problem in this indirect effect methodology? How does he
solve it? (pp.122-124) Finniss views on the problems of
consequentialism and (related to that) the doctrine of indirect effect
represent the currently most distinctive and contentious aspects of
natural law morality. Do you agree with Finnis on these points? How
clearly has he delineated the sphere within which consequentialist
reasoning is permissible and (by implication) the sphere within
which it is impermissible? Could a focus on intention at the
expense of consequences be said to legitimise an undesirable
blindness to (admittedly uncertain) consequences?

In Chapter VI, Finnis broadens from the somewhat individualist focus

of the book thus far to consider the question of community. He
recognises that a community has different aspects; the aspect on
which he focuses is the unity of common action. Now two (or more)
people may collaborate to serve their individual interests (business
community). Or two (or more) people may collaborate where the
collaboration itself is the point (play community). Each of these is
distinct from a community of friendship where the collaboration is at
least in part for the other. For Finnis, the most intense form of
community is the friendship of true friends. The individual
flourishing contemplated in the earlier chapters requires that one go
beyond individual flourishing. For Finnis, the family (broadly defined
here) is the paradigm of true friendship. However, families cannot
be self-sufficient and other levels of community are therefore
required. That said, the principle of subsidiarity requires that larger
associations not assume functions which can be performed
efficiently by smaller associations. Although family is a very (the
most?) thoroughgoing form of association, it is incomplete and
inadequate. Accordingly, there emerges the desirability of a
complete community, an all-round association in which would be
co-ordinated the initiatives and activities of individuals, of families,
and of the vast network of intermediate associations (p.147). This
co-ordination takes place in the political community and law is the
means of co-ordination.

A particular community constitutes itself not by the interaction of its

participants but rather by the shared aim(s) of its participants. The
more the participants conceive of themselves as a community, the
more they look for practices, usages, conventions or norms for
solving their co-ordination problems, as well as for someone with
authority to select among available solutions. This idea is central to
Finniss views on the emergence of law, which we will consider in
more depth later. In light of his views on community, Finnis identifies
a number of different senses of common good (NB, this is not the
greater good criterion of utilitarian/consequentialist thinking).
Common good can refer to reasons for collaboration; it can refer
to a (basic) good that can be participated in by any number of
people. Of most relevance for his later chapters, he suggests a third
meaning of common good: a set of conditions which enables the
members of a community [the all-round political community] to
attain for themselves reasonable objectives, or to realize for
themselves the value(s), for the sake of which they have chosen to
collaborate with each other in a community. This does not mean
that the members of a community must all have the same values or
objectives, but rather that there is a set of conditions necessary to
the achievement of members different objectives. Those necessary
conditions are justice, authority and law.

In Chapter VII, Finnis addresses the concept of justice.

Pages 161-177
What three elements does the concept of justice embrace (pp.161-
163)? What is meant by general justice (pp.164-165)? What two
aspects of justice does Finnis identify (p.166)? When is a disposition
distributively just (pp.166-167)? To what extent does distributive
justice remain individual-focused (pp.168-169)? Why is private
property usually a requirement of justice (pp.169-170)? In light of
these justifications for private property, what does Finnis think
private property is and what limits does he see as imposed on the
exercise of private property rights (pp.171-173)? What are the
criteria of distributive justice (pp.173-177)?

Pages 177-184
What is commutative justice (p.179)? What point does Finnis seek to
make through his examination of torts law (pp.180-181)? What
examples of commutative justice doe Finnis give (pp.183-184)?

In the remaining pages of this chapter, Finnis supports the

legitimacy of redistribution on the part of the state, on the ground
that it merely reinforces an obligation of distributive justice already
held by the property owner (pp.184-188). Finally, he illustrates
principles of justice by reference to the then English law on
bankruptcy (pp.188-193).

In Chapter VIII, Finnis addresses the issue of rights. He begins with a

fairly detailed discussion of the Hohfeldian conception of rights. You
should note his adaptation of Hohfelds terminology on p.199 and
his concluding comments of section VIII.2 on p.205. He then reviews
the way in which the meaning of right or jus has shifted over the
past 2000 years (pp.205-210). He then considers the formulation of
restrictions on rights (in documents such as the Universal
Declaration of Human Rights) and considers that rights should not
be restricted by general welfare (because that is a utilitarian notion
and utilitarianism is nonsense), that rights should not be stated to
be subject to the common good (because the maintenance of
human rights is a fundamental component of the common good),
but that it is permissible to state that rights are subject to certain
aspects of the common good (for reasons of clarity).

Pages 218-226
What steps must be followed to specify rights (pp.218-219)? How do
we decide on a specific set of rights (pp.219-221)? Why is equal
concern and respect not denied by preferring one conception of
human good over another (pp.221-223)? Why are there absolute
human rights (p.225)? In light of Finniss comments at pp.225-226,
would it have been permissible during World War II for a person
hiding Jews to lie to a member of the Gestapo and say that no Jews
were in his/her house?

In Chapter IX, Finnis returns to currently more common

jurisprudential concerns that are of particular relevance to our
earlier study of positivist legal theory, in particular Harts Concept of
Law. He does this by considering the question of authority.
Remember that it was an aspect of Harts concept of legal validity
that a valid rule was one made by a person who, under another rule,
had authority to make rules.

Pages 231-254
What are the two ways of solving the co-ordination problems of a
community (p.232)? Why is one more feasible than the other
(p.233)? What is the focal meaning of authority (pp.233-234)? What
are the differences between S1, S2 and S3 assertions of authority.
Why is S1 the focal case of authority for Finnis (pp.235-236)? What
does the paradox in the formation of customary rules of
international law have in common with the paradox in the formation
of Harts ultimate rule of recognition (pp.238-239)? How does Finnis
resolve this paradox (pp.239-245)? What gives people authority to
govern a community (pp.246-252)? What does Finnis mean by the
urgent need to legalize the devolution of undevolved authority
(p.250)? What two riders does Finnis add to the general
acquiescence basis for authority (p.250-251)?

In Chapter X, Finnis addresses Law.

Pages 260-280
What justifies coercion (pp.262-264)? According to Finnis, what for
Weber distinguished legal authoritative co-ordination (p.267)? What
does Finnis see as the main features of a legal system (pp.267-270)?
What are the desiderata of the Rule of Law (pp.270-272)? What is its
justification (pp.272-273)? What does Finnis mean by law, in its focal
sense, being fully instantiated (p.277)? At pp.278-279, Finnis
restates the purpose of his book. Explain what this purpose is. Why
does Finnis describe validity as a technical device for use within the
framework of the legal process (pp.279-280)?

At pp.281-290, Finnis considers how positive laws are derived from

natural law and formulated as legal propositions. Put briefly, there
can be direct derivation (eg the offence of murder as a legal
realisation of the natural law principle not to act directly against the
good of life) and implementation of the natural law recognition of
co-ordination as a way to serve the common good. In this latter
instance, the natural law may leave open the choice of rules, but
does require that there be some rules. Note his concluding
paragraph on p.290.

In Chapter XI, Finnis address obligation.

Pages 297-308
What is the central case of promissory obligation (pp.298-299)?
What is Finniss first level explanation of why promises bind (p.300)?
What is the weakness of this first level explanation (p.301)? What is
the second level explanation of obligation (p.301)? Why does it fail
(p.302)? What is Finniss third-level explanation of obligation (p.303-
4)? How does Finnis rework this explanation on pp.306-308?

Pages 308-320
What does Finnis mean by describing a promise as an exclusionary
reason that can be defeated by some countervailing reasons
(pp.308-309)? How does legal obligation differ from this (p.309)?
What is the methodological counterpart of the invariability in the
formal force of legal obligation (p.311)? In what way, in Finniss
view, does Hart fail to account for this variability (pp.312-314)? How
does Finnis rephrase the problem on p.314? What is Finniss solution
to the problem (pp.315-320)? How is it that moral obligations are
defeasible while legal obligation is not, and yet there is a strong
moral obligation to obey the law?

In the remainder of the chapter, Finnis considers in detail a number

of running disagreements, in order to illustrate his understanding of
legal obligation.

In Chapter XII, Finnis considers Unjust Laws. This is of particular

interest given that a common (if unsophisticated) perception of
natural law is that it commits itself to the proposition that an unjust
law is not a law.

Pages 351-366
What are the four types of injustice in law (pp.352-354)? What are
the four ways in which one might ask, how does injustice affect the
obligation to obey the law (pp.354-355)? Why is the second sense of
it not an entirely empty question but what are its limits (pp.355-
357)? Note Finniss rephrasing of the third question on p.357. Why,
according to Finnis, is this question properly the concern of
jurisprudence (pp.357-359)? What are the limits to a rulers
authority, understood precisely, and what are the implications of
those limits for the ruled (pp.359-361)? How can the views of other
citizens create a moral obligation to obey the law (p.361)? In light of
this, how must we understand the statement, an unjust law is not a
law (pp.363-366)?

We will not consider Chapter XIII in class.