As promised, we now proceed to Chapter II of “Natural Law and Natural Rights.” Professor Finnis begins this chapter by clearing his throat, so to speak, and announcing that his “present purpose … is not to anticipate later chapters, but to make some preliminary clarifications” (p. 22). The main clarification he makes in the first subsection of Chapter II is to point out a fundamental distinction between natural law and theories of natural law–between “discourse about natural law and discourse about … doctrines of natural law” (p. 23). In summary, natural law proper is timeless and ahistorical (its content is constant and unchanging), while theories of natural law are contingent and historical (the content of these theories can change over time, depending on the time and place in which a given natural law theory was developed).
In addition, Professor Finnis further states: “This is a book about natural law [and not about previous theories of natural law]. It expounds or sets out a theory of natural law, but is not about that theory” (p. 23, emphasis in original). But Prof Finnis’s fundamental distinction between natural law proper and derivative theories of natural law raises a difficult and embarrassing question. If natural law and theories about natural law are two separate subject matters, then how could we ever discover–let alone “test” or falsify–the truth of any particular theory of natural law, including Prof Finnis’s own pet theory? Isn’t such a task an impossible one, or more to the point, are not all theories of natural law (as opposed to natural law proper) tautological? Regardless, we will continue our review of Chapter II in our next post.