Finnis’s hodge-podge (review of XII.2)

Hey, what’s up? Let’s put on hold our previous objections to John Finnis’s theory of law and proceed with our review of “Natural Law and Natural Rights,” shall we? By my count, Professor Finnis identifies no less than six separate categories of unjust laws in subsection 2 of Chapter XII:

  1. Laws that are “improperly motivated,” such as laws designed to enrich the ruling class or laws enacted “out of malice against some person or group”;
  2. Laws that are ultra vires or that exceed the legal authority of the lawmaker, except in cases of emergency;
  3. Laws that are inconsistent with due process or with the “rule of law”, i.e. laws that do not afford to “all an equal opportunity of understanding and complying with the law,” unless those persons subject to such unfair laws consent “or ought to consent” (!) to them;
  4. Laws that are inconsistent with the principles of “distributive justice”;
  5. Laws that are inconsistent with the principles of corrective justice (what Finnis prefers to call “commutative justice”); and
  6. Laws that deprive a person of his human rights.

This hodge-podge pretty much sums up Professor Finnis’s clumsy and complex theory of law, but aside from being unjust or unfair, what do the items in this ad hoc laundry list have in common? If you are a disciple of Finnis, you might be tempted to say that the various types of laws contained in this master collection are unjust because they are all inconsistent with “practical reasonableness” or with the “common good,” the Holy Grails of Finnis’s elaborate theory of law, but you would be wrong! Recall from my previous post that “reasonableness” is just a bullshit term and that Finnis defines the common good with specific reference to co-ordination problems, i.e. multi-player Prisoner Dilemmas, such as Rousseau’s classic “Stag Hunt” game. (Look it up!) Simply put, laws that solve such co-ordination problems help promote the common good, but such laws must be reasonable, whatever that means. The problem with Finnis’s theory of law should now be in plain sight, for it is easy to imagine an unjust or unfair law from Finnis’s long list that effectively and efficiently (and thus “reasonably”) solves such co-ordination problems. (After all, it was Mussolini who got the proverbial trains to run on time.)

We could try to salvage Finnis’s ad hoc taxonomy of unjust laws by reframing it in a new way. Instead of trying to compile a complete list of unjust laws, we could follow Nozick by asserting that people have natural rights to life, liberty, and property and that everyone–including our rulers and lawmakers, whoever they happen to be–is thus morally required to respect these rights. This approach, of course, begs some difficult questions, such as how do we enforce these rights, and how should we resolve situations involving conflicting rights? But at the very least the Nozickian approach to justice is simpler and more elegant than Finnis’s clumsy ad hoc approach. In any case, let’s assume that Finnis’s master taxonomy is the correct one. What happens when an unfair or unjust law is enacted by lawmakers or enforced by a court? We shall continue our review of Chapter XII in our next post …

Image result for trains run on time

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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