Source of legal duties: common good redux (review of XI.8 & XI.9)

Professor Finnis concludes Chapter XI of NLNR by asking (and I paraphrase), What is the ultimate source of our invariant obligation to obey the law? That is, what is the source of legal duties? Is it God’s will? The legislator’s will? Or something else? We probably cannot do justice to Prof Finnis’s elaborate and erudite philosophical analysis of this question in a blog post. Nor will we even try. It suffices to say that, for Finnis, the ultimate source of legal duties is not the will of God or the will of the lawmaker but rather “the needs of the common good” (p. 343).

Say what? This reliance on the common good as an all-purpose theoretical crutch is getting old … Basta! Enough already! [Insert your favorite double facepalm gif here, or see ours below.]

As the reader must have noticed by now, the lynchpin of Finnis’s entire theory of law is this vague and opaque notion of the common good. To the extent Finnis defines the common good in terms of our ability to cooperate and solve collective action problems, Finnis appears to be mostly on solid ground. (I say “appears to be” and “mostly” because of the problem of bad common goods–scenarios involving nefarious ends.) Still, we have strongly criticized Prof Finnis’s focus on the common good on many occasions. That is why I now want to hit the pause button on my review of NLNR. Before we conclude our review of Finnis, I want to take a moment to explain in greater detail my unyielding and unrepentant critique of the “common good,” a seemingly-innocuous idea that might be unobjectionable to most people. Since my hardcore critique of the common good is based on James Madison’s Federalist Paper No. 10 (1787), one of my favorite essays of all time–along with David Hume’s 1752 essay “On the original contract” and Benjamin Franklin’s 1786 essay “On the morals of chess”–I will therefore take an important intellectual detour in my next few posts in order to review Mr Madison’s provocative ideas in Federalist #10.

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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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