Reviews
| DOI | http://doi.org/10.1111/j.1468-2230.1981.tb02760.x |
| Published date | 01 November 1981 |
| Date | 01 November 1981 |
REVIEWS
CAN
YOU
BELIEVE IN NATURAL LAW
?
NATURAL
LAW
AND
NATURAL
RIGHTS.
By
JOHN
FINNIS.
[Oxford:
THE
reaction of most English lawyers to the idea of natural law would,
I
suspect, be something like the following: “Natural law played some part in
the politics of the past.
You
can’t believe in it without faith. And, even if you
did believe in it, it would have precious little bearing on lawyers’ concerns
today.”
If
the reader’s views approximate to this crude stereotype, and
if
he has
the patience and fortitude to follow through the finely-meshed and scholarly
arguments of Dr. Finnis’s book, he is likely to change his mind.
He
might even
become an adherent of natural law. The book has nothing to say about past
politics. It claims that belief in natural law depends not at all on faith, but
entirely on
a
certain view of the capacities of human reason. And, if
“
lawyers’
concerns” include such matters
as
justice and the range and limits of the
moral authority of law, the book argues for the relevance of natural law ‘to
such concerns.
For Finnis, the historical achievements (good or bad) of natural law
theorising are beside the point. Natural law itself, if it exists, has no history
and no achievements. Surveys within the history of ideas, which usually
appear in jurisprudence textbooks under the heading of “natural law,” are
not
his
concern. Although he garners, adopts and discards arguments drawn
from an enormous range of the literature, and claims that his version of natural
law is
a
restatement and extension of the “classical doctrine” of Aristotlc
and Aquinas, exegesis of past speculations is not his principal objcct. His
aims are to show what natural law is, to show what
sort
of contention one
has to accept
if
one is to believe that it exists, and
to
show its importance
to
decisions about what we ought
to
do and about what social and political
projects we ought to favour.
What, then, is natural law, according to Finnis? It consists of two sets of
“
self-evident
”
principles. The first set proclaims that certain things are
inherently good for human beings-life, knowledge, play, aesthetic experience,
sociability (friendship), practical reasonableness and
“
religion.”
(“
Religion
”
here means questioning about ultimate ends, not any answer, or practised
embodiment of any answer, to such questioning.) The second set consists of
the requirements of practical reasonableness, which indicate how we ought,
in reason, to relate our decisions and projects to the basic values identified
in the first set. One must form
a
coherent plan of life; adopt no arbitrary
preferences amongst the basic values, for instance, by speaking or thinking
as
if any one of them did not count; adopt no arbitrary preferences amongst
persons; maintain
a
certain detachment from particular projects, whilst not
abandoning them lightly; employ efficient means; avoid any act which “of
itself” does nothing but damage the realisation of any of the basic goods
(this requirement leads to the inviolability of some human rights, and is the
foundation of Roman Catholic prohibitions on killing the innocent and
“
anti-
procreative sexual acts
”);
favour the common good of one’s communities;
abstain from doing what one judges to be wrong.
What must one accept if one is to believe that natural law exists? In the
first place, the concept of self-evidence, the view that among the capacities of
human reason there is the ability to grasp, without the need for demonstration,
that there
are
basic features of human well-being, and that there are methodo-
logical imperatives which, in reason, must structure the way we relate these
basic goods to our moral concerns. Finnis insists that this is an essential
feature of the classical doctrine of natural law. He repudiates any teaching
729
Clarendon Press, 1980.425
pp.
E15.1
730
THE MODERN LAW REVIEW
[Vol.
44
which suggests that the basic principles can be inferred from facts about
the
nature of man, or of social institutions, or of the universe,
or
of God.
No
firmer adherent than he to the claim that “ought” cannot be derived from
“is.” Indeed,
he
regards the label “natural law” itself as unfortunate-
although as we have it, we might as well use it-principally because it might
suggest that first principles are deduced from observations of nature.
I
say “in the first place” one must accept the concept of self-evidence.
What is not clear to me from the book is whether, in Dr. Finnis’s view, in
order to believe in natural law one must agree with his own lists of self-
evident principles. As to the second set, the methodological requirements of
practical reasonableness, he concedes that there can be
a
variety of formula-
tions. This second set consists of rather sophisticated and abstract features
of reasoning, which most men may not formulate at all, even if they
use
them. We employ the principle that Finnis formulates as “no arbitrary
preferences amongst persons
”
if we believe that it is, beyond argument,
unreasonable to take
a
strictly egoistic line about morals and politics. More
problematic, as Finnis recognises, is the requirement that we avoid acts
which of themselves negate any of the basic goods-formulated by him
as
“respect for every basic value in every act.” Although people often act on
the assumption that the end justifies the means, sustained reflection will reveal
(he claims) that such an attitude is contrary to reason, where the means include
such things as killing the innocent or torture-he recognises that there are
going to be problems in individuating acts
so
as to pick out
a
category which
“
of themselves
”
are directed at damaging
a
basic value.
As to the basic values themselves, proclaimed by the first set of principles,
Finnis claims to have provided an exhaustive list: all other essential features
of human flourishing are reducible to one of his seven forms, or to combina-
tions of them. Someone who disagreed with this and wanted to add to the
list-for example, by asserting that the preservation of certain animal species
was
a
self-evident and irrcducible good for humanity-would, presumably,
still be
a
natural lawyer. The fact that
a
principle
is
self-evident does not
mean that it may not have been overlooked. But supposing someone wished to
rejig the list, arguing that its members are not all independent and irreducible
-for example, by claiming that
“
play
”
is only an instrumental good in
so
far as it serves either aesthetic experience or sociability; or radically to qualify
its components-for example, by claiming that “life
”
is only
a
good if an
individual has most of the typical human faculties (compare controversies
about allowing deformed children to die);
or
even to cross items
off
the list-
for example, by claiming that
‘‘
religion
”
is not
a
good, because even asking
questions about the meaning of human life
is
of no value. Personally,
I
would
dissent from all these claims; but would one who made any of them thereby
commit himself to
a
rejection of the whole idea of what Finnis calls “natural
law
”7
He does not tell us, but
I
think that the structure of the book suggests
the following answer. If someone accepts the self-evidence of sufficient basic
values and requirements of practical reasonableness to enable him to make
some discriminations, based on reason, between the moral and political alter-
natives which in practice confront him, he has a theory of natural law,
although his view of its contents may differ from Finnis’s. Consequently, if
someone believed that the only self-evident principle
is
that knowledge is a
good, he would not believe in natural law (for “it’s good to know” gives
no indication of how knowledgc should be used). This is important because
Finnis takes “knowledge” as his exemplar when arguing for the general
concept of self-evidence. Anyone who fails to appreciate the self-evidence of
the other principles has not reflected wisely
or
enough about human concerns;
but anyone who denies that knowledge is
a
good commits himself to inco-
herence. Hands up anyone who will inform
US
that information is worthless.
Supposing that one does accept the existence of “natural law,” in Finnis’s
sense, what difference does it make to one’s moral and political (especially
to one’s jurisprudential) judgments? At this point, we move beyond the self-
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