Prof Finnis steps back from his natural law precipice (review of XII.3)

Professor Finnis explores one of the most difficult and fascinating moral questions in subsection 3 of Chapter XII: “How does injustice … affect the obligation to obey the law?” Or more simply put, Does one have a duty to obey an unjust law? And in the process of answering these fundamental questions, Finnis demonstrates a high level of philosophical sophistication and scholarly erudition. To begin with, Finnis restates or “reframes” his key question in four different ways:

  1. Will the courts still enforce an unjust law? (The empirical question.)
  2. Is an unjust law legally valid? (The legal validity question.)
  3. Is an unjust law morally valid? (The moral validity question.)
  4. What will happen to the legal system or political order if I decide to disobey an unjust law? (The “collateral effect” question.)

Finnis quickly and cogently disposes of the first two sub-questions or reframings. He concedes that an unjust law will most likely be enforced from an empirical perspective and that such a law is, technically speaking, still legally valid from a purely legal (as opposed to moral) perspective. But at the same time, Professor Finnis persuasively argues that the moral status of a law is still relevant to the empirical and legal validity questions. After all, since courts have the power to do equity by refusing to enforce unjust laws, the moral status of a law might affect the probability of its enforcement (the empirical question) or the probability that such a law will be declared null and void (the legal validity question).

I won’t spend much time on the third sub-question or reframing, however. Suffice it to say that Finnis concludes that, from a moralistic perspective, there is no moral duty to obey an unjust law. Why not? Because unjust laws create no moral obligation whatsoever. Now why do I refuse to spend any more time on this aspect of Finnis’s circular natural law argument? Because the learned professor is not only turning a cheap rhetorical trick; he is also unable to stomach his own conclusion to boot! For according to Prof Finnis, even if there is no moral duty to obey unjust laws, one should still obey such laws for practical reasons (emphasis in original):

It may be the case … that if I am seen by fellow citizens to be disobeying or disregarding [an unjust law], the effectiveness of other laws, and/or the general respect of citizens for the authority of a generally desirable ruler or constitution, will probably be weakened, with probable bad consequences for the common good.

Come again? After clearing the path, hiking all this distance, and leading us to his natural law precipice, Prof Finnis takes one look over the edge and decides to step back by returning to conventional consequentialist moral reasoning! (The hypocrisy or delicious irony–take your pick–of this conclusion will not be lost on the careful reader, for Finnis spends a lot of ink in “Natural Law and Natural Rights” denouncing all forms of consequentialism.) In other words, instead of ending with a bang; Finnis ends with a whimper. It’s as if St Thomas Aquinas had concluded his great treatise with the words: “Oh well. Nevermind.” We will conclude our review of Chapter XII in our next post.

Image result for precipice

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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