We shall now review Chapter X of “Natural Law and Natural Rights.” Among other things, Professor Finnis explores the relation between law and coercion (pp. 260-264), identifies the main features of a legal order (pp. 266-270), and presents a “multi-faceted” conception of law (pp. 276-281). Alas, this chapter is hard to take seriously. Why? Because Finnis’s premises are built on theoretical quicksand. In the words of Finnis, “The authority of the law depends … on its justice or at least its ability to secure to justice.” But what is justice? For Finnis, “the objective of justice is … the common good” (p. 174). Now, before proceeding, recall that Finnis defines the common good in terms of our ability to promote cooperation and solve collective action problems. Alas, for any polity with a large enough number of members, that polity is going to consist of groups or factions favoring competing and conflicting solutions to such collective active problems, so putting aside such crude general measures as GDP or life satisfaction/happiness surveys, it’s not clear whether we can identify a master “common good” as opposed to the individual interests or individual goods of each member.
Nevertheless, there is at least one aspect of Chapter X that we can try to salvage: Finnis’s analysis of the rule of law on pp. 270-276 of his book. Finnis identifies eight separate “desiderata” or requirements of the rule of law, including (i) prospectivity, (2) ease of compliance, (3) public promulgation, (4) clarity, (5) coherence, (6) stability, (7) generality, and (8) accountability. Again, in the words of Finnis (pp. 270-271):
A legal system exemplifies the Rule of Law to the extent (it is a matter of degree in respect of each item of the list) that (i) its rules are prospective, not retroactive, and (ii) are not in any other way impossible to comply with; that (iii) its rules are promulgated, (iv) clear, and (v) coherent one with another; that (vi) its rules are sufficiently stable to allow people to be guided by their knowledge of the content of the rules; that (vii) the making of decrees and orders applicable to relatively limited situations is guided by rules that are promulgated, clear, stable, and relatively general; and that (viii) those people who have authority to make, administer, and apply the rules in an official capacity (a) are accountable for their compliance with rules applicable to their performance and (b) do actually administer the law consistently and in accordance with its tenor.
Notice what all these sundry and maddingly vague desiderata have in common: they are all procedural in nature. For Finnis, the rule of law is not about the substantive content of law; rather, it’s about how the law (whatever its content) is made and applied. (By the way, this focus on procedural natural law or the “inner morality of law” is not Finnis’s idea. It is an idea that can be traced back to the great Lon Fuller.) The essential ideas here boil down to notice and universality: people must be able to find out what the law is, and these same laws must also apply to the rulers themselves. But there is something missing in both Finnis and Fuller’s work on the rule of law: what about the value of accuracy? Why do so many legal philosophers or “jurisprudes” omit this key variable in their explorations of the rule of law?
I have covered this ground before, for as I noted in a previous post–back when I was reviewing the breathtaking work and ideas of my hero Robert Nozick: “any procedure is going to be imperfect to a greater or lesser degree. An innocent man might be found guilty with some positive probability, and a guilty man might be declared innocent with some probability, and furthermore, the choice of procedural rules will produce trade-offs [between accuracy and justice].” (To quantify this tragic trade off, consider the famous Blackstonian legal maxim below.) To my mind, then, the key question in the domain of procedural fairness is this: which procedural probabilities and which trade-offs are morally required or morally acceptable? Alas, neither Finnis nor Fuller has anything to say about these legal and moral probabilities. For now, it suffices to say that I am deeply dissatisfied with Finnis’s (and Fuller’s, for that matter) procedural approach to the rule of law. That said, I will proceed to the next chapter of “Natural Law and Natural Rights” (Chapter XI) and begin wrapping up my review of Finnis in my next few posts …