Finis: THEORY AND EVALUATION

of law
Chapter 1

SUMMARY

There are certain human goods that can only be secured through legal institutions and requirements of
practical reasonableness that only those institutions can satisfy.

He says that in describing law, it is impossible to define whether something is law in every single
scenario (as opposed to politics, discretion etc) and prefers simply to focus on the central cases.
This was Aristotles view.

He characterises the descriptive approach of Hart/Raz as taking practical view i.e. that the
theorist must assess the importance and significance in similarities or differences of the subject
matter by those whose concerns or decisions or activities constitute the subject matter (i.e. look
from POV of judges or politicians). Finnis says this approach is unsatisfactory as it amalgamates
the differing IPOVs of different actors in the field and insists on attributing one IPOV to all of
them, whether they are anarchists or model citizens. He also believes that Harts concession that
people might be motivated to comply with the law by calculations of self interest waters
downthe function of the law as an answer to real social problems.

Finnis says that a philosopher cannot give a theoretical description and analysis of a social
phenomenon unless he partakes in an evaluative exercise too. He has two related points here,
firstly a human artefact like law constituted by human actions and practices can only be fully
understood by reference to its point. Secondly Finnis believes that a theorist cannot describe
without evaluation because the subject matter (law) doesnt come neatly demarcated from
social life and practice.

Instead Finnis argues that we should take the viewpoint that we should view IPOVs as at least
presumptively concerned with practical reasonableness, which is one way of defining morality.
The evaluations of the theorist himself are indispensable for choosing concepts to use in the
description of aspects of human affairs such as law or legal order. Thus Finnis takes an evaluative
descriptive view of law (unlike Harts value free descriptive approach). Finnis denies that this
means descriptive theories will be merely the whims/prejudices of individual commentators,
since we engage in a disciplined acquisition of knowledge by reasoning.

He says he is not deducing descriptions from evaluations of vice versa, but merely that
describing without evaluation will prevent us from seeing which descriptions are really
illuminating and significant.
Main point in Chapter 1

The formation of concept for descriptive social science

there are human goods that can be secured only through the institutions of human law and
requirements of practical reasonableness that only those institutions can satisfy

This mean that a theorist cannot give a theoretical description and analysis of social facts, unless he also
participates in the work of evaluation, of understanding what is really good for human persons, and what
is really required by human reasonableness.

The following have aims to identify those goods and those requirements of practical reasonableness, and
thus to show how and on what conditions such institutions are justified and the ways in which they can
be defective.
Social seeks to describe, analyse and explain some object or subject matter. The object is constituted by
human actions, practices, habits, dispositions, and by human discourse. The actions, practices, etc., can
be fully understood only by understanding their point, that is to say their objective, their value, their
significance or importance, as conceived by the people who performed them, engaged in them.
Moreover, these actions, practices, etc., and correspondingly these concepts, vary greatly from person to
person, from one society to another, from one time and place to other times and places. How, then, is
there to be a general descriptive theory of these varying particulars?

This social life and practice bears labels in many languages. The languages can be learned by speakers of
other languages, but the principles on which labels are adopted and appliedi.e. the practical concerns
and the self-interpretations of the people whose conduct and dispositions go to make up the theorists
subject matterare not uniform.

Kelsen defines law as a specific social technique: the social technique which consists in bringing about
the desired social conduct of men through the threat of a measure of coercion which is to be applied in
case of contrary conduct. From this he derives his characterization of the individual legal norm as a
norm for the application of a sanction, and from this in turn follow the other features of his
nomostatics and several features of his nomodynamics.

The greater explanatory power of later descriptive analyses of law, such as those of H. L. A. Hart and
Joseph Raz, is to be attributed to their fairly decisive break with the rather naive methodologies of
Bentham, Austin, and Kelsen. This sophistication of method has three principal features:

1. Attention to practical point

Kelsen identifies law as a specific social technique, Hart replies that Kelsens description in fact obscures
the specific character of law as a means of social control by distorting the different social functions
which different types of legal rule preform.

2. Selection of central case and focal meaning

Because the word typical may suggest that the relevant criterion is statistical frequency (whether in
human history, or today), I prefer to call the states of affairs referred to by a theoretical concept in its
focal meaning the central case(s).
3. Selection of viewpoint
Hart gives descriptive explanatory priority to the concerns and evaluations (and consequently to the
language) of people with an internal point of view, viz. those who do not merely record and predict
behaviour conforming to rules, or attend to rules only from the external point of view as a sign of
possible punishment, but rather use the rules as standards for the appraisal of their own and others
behaviour.28 Raz, in his earlier work, adopts the ordinary mans point of view, but in his more recent
work shifts to the legal point of view, which is the point of view of people who believe in the validity of
the norms and follow them (paradigmatically, the viewpoint of the judge qua judge
Rather obviously, this position of Hart and Raz is unstable and unsatisfactory. As against Austin and
Kelsen they have sharply differentiated the internal or legal point of view from the point of view of
those who merely acquiesce in the law and who do so only because, when, and to the extent that they
fear the punishments that will follow nonacquiescence.

Thus, by a long march through the working or implicit methodology of contemporary analytical
jurisprudence, we arrive at the conclusion reached more rapidly (though on the basis of a much wider
social science) by Max Weber: namely, that the evaluations of the theorist himself are an indispensable
and decisive component in the selection or formation of any concepts for use in description of such
aspects of human affairs as law or legal order. For theorists cannot identify the central case of that
practical viewpoint which they use to identify the central case of their subject-matter, unless they decide
what the requirements of practical reasonableness really are, in relation to this whole aspect of human
affairs and concerns. In relation to law, the most important things for the theorist to know and describe
are the things which, in the judgment of the theorist, make it important from a practical viewpoint to
have lawthe things which it is, therefore, important in practice to see to when ordering human
affairs. And when these important things are (in some or even in many societies) in fact missing, or
debased, or exploited or otherwise deficient, then the most important things for the theorist to describe
are those aspects of the situation that manifest this absence, debasement, exploitation, or deficiency .

Theory of natural law (in relation to chapter 4)

Professor John Finnis is a contemporary defender of natural law and a supporter of it's resurgence in the
last century. Finnis is a strong supporter of a 'neo-Aquinian' natural law philosophy which does not
presuppose a divine being. Instead of making reference to the 'form' of good or seeking good, as was
proposed by historical jurists he speaks of mans desire to pursue basic 'goods' in life. Finnis focuses on
goods rather than a single good in what he refers to as "a theory of moral action for our day" or in other
words he seeks a theory of how to live well.

Finnis suggests that in order to understand a social phenomenon such as law if we understand the
objective of the practice from the viewpoint of its participants

Therefore, in order to find the correct distinguishing features of a social practice we need to find a
central case of the practice and a viewpoint to adopt. Analytical positivism has largely opted to adopt
an internal point of view something more than someone who acquiesces to the law purely out of fear
 but Finnis argues this should be taken further. Instead, the viewpoint that must be taken is that of the
good, moral or practicably reasonable man, which of course means that moral considerations come
into play in the very selection of what features make a concept of law. Thus the main concern of a
theory of natural law is to explore the requirements of practicable reasonableness in relation to the good
of human beings, who because they live in a community with others, are confronted with problems such
as justice, rights, authority, law, and obligation. And then the concern of natural law is to identify the
limits of the rule of law. Unjust laws are not laws.

The Concept of Law - Focal & Core

Meaning
Finnis outlines that the human 'basic goods' must be utilised in a community or society, as only then will
the conditions to achieve these exist in the pursuit of a common good. This common good requires a
legal system but such systems can sometimes work against the common good Finnis acknowledges this
and states that a ruler has the authority to act for the common good. If he acts in a way that appears to
go against the common good or any of the principles of practical reasonableness such actions lack the
authority that they should have had. Just as Aquinas believed, Finnis says such laws lack moral authority,
they do not bind the conscience of man and one is neither morally obliged to conform nor not to
conform. Or put more simply unjust laws are a perversion of law and do not bind mans moral
conscience.

Finnis distinguishes here the difference between the focal or core meaning of the law from the
penumbral meaning. The latter relates to difficult cases and unclear meanings of law. In such cases an
argument is needed to demonstrate that it is appropriate to interpret the rule of law in a particular
fashion. The former relates to laws that are aimed at the realisation of the common good for a
community - if such are unjust they will not be regarded as laws in the focal sense. It is in the focal sense
of the concept of law that we must identify as it is in this meaning that we find a direct link between the
law and moral order.

Finnis - S elf-evident basic values,

This theory is based on the supposition that mankind sets out to obtain things they perceive to
be good for themselves. In doing so, man must exercise practical reason to obtain that good at
any one time. Finnis isolates eight of these goods which, according to him, cannot be broken
down any more and so refers to them as 'basic goods' in life. These are, he says, fundamental
and do not derive from other goods - analogous to the moral equivalents of chemical elements.
They are generally things which for most people make life worthwhile and according to Finnis
are self-evident. They list as follows -

a. Life - life is the first basic value stemming from the drive for self preservation.
b. Knowledge - refers to the preference of man for true fact over false belief. Finnis calls it
speculative knowledge distinguishing between knowledge sought for personal sake over
knowledge sought as a means of achieving power or popularity.
 c. Play - relates to performance for the sake of it - an act or acts done for no point but an attempt
to better oneself
d. Aesthetic
e. Experience - relates simply to the appreciation of beauty but at all levels
f. Friendship/Sociability - acting for the well being of a friend
g. Practical
h. Reasonableness - the main concept which relates to mankind using their own intellect to choose
his paths in life
i. Religion - relates to the ability of mankind to reflect on universal origins and of
j. human freedom and reason
k. Marriage - a recent addition to Finnis' list of 'basic goods'. Marriage, per Finnis, is that between a
male and a female and any sexual activity between non-married persons that is not procreative
is inherently immoral.

The first three (a) to (c) above Finnis calls substantive goods, which exist prior to action. The final group
of these basic goods he terms reflexive goods which depend on our choices.

Characteristi c of Practi cal reasonableness

He says that there are 9 basic requirements of practical reasonableness:

The good of practical reasonablenessstructuresthepursuitofgoodsgenerally. It shapes our

participation in the other goods. It helps us to choose what to do, what projects to commit our
time to.
A coherent plan of life.
No arbitrary preference amongst values.
No arbitrary preference amongst persons.
One should be both open-minded and committed to ones projects.
The relevance of consequences: actions should be reasonably efficient.
Respect for every basic value in every act.
The requirements of the common goodone should act to advance the interests of the
community
Following ones consciencewe shouldnt go against our inner conscience