Otro triste 20 de mayo. (Another melancholic 20th of May.) Today would have been Cuban Independence Day had JFK not botched the Bay of Pigs invasion. When will our beloved Cuba be free? In the meantime, let’s pick up where we left off with our review of “Natural Law and Natural Rights” (NLNR).
Thus far, Professor Finnis has drawn a distinction between two distinct types of “obligation”–moral and legal–and has speculated about the content of our legal duties. Next, Prof Finnis will explore the moral side of legal duties in subsections six and seven of Chapter XI of NLNR. In particular, does the enactment of a law in a given polity generate any moral duties? Or put another way, what moral duties, if any, do laws impose on the members of the polity to whom those laws apply? In short, what is the moral content of law? Alas, the answer to these deep queries boils down to this: “it depends.” For Finnis, the moral content of any given law depends on the type of law under consideration, or to be more precise, it depends on purpose of the law and the way it is enforced. Simply put, does the law in question impose a penalty or a tax? Is its main purpose to punish or collect revenue? (I have added the word “main” to the previous sentence since a single law can be animated by multiple and conflicting purposes.)
Although Finnis concedes that “this distinction [between taxes and penalties] inevitably is hard to draw in practice” (p. 332), since both taxes and penalties often produce similar incentive effects, this “basic distinction” (p. 327) is the secret key to unlocking the moral mysteries of legal duties. Why? Because to determine what the moral content of a law is we first need to figure out what the purpose of the law in question is (i.e. why was the law enacted?), and for Finnis, the most important clue for discovering a law’s purpose is to identify the way in which the law is enforced. In his own words, Finnis explains the inner logic of his tax/penalty litmus test thus (p. 332):
Is this (i) a form of conduct authoritatively declared to be incompatible with the authoritatively chosen common way (and therefore subjected to penalty) or is it (ii) a form of conduct which the legislator perhaps (a) approves but finds convenient as an occasion for raising revenue, or perhaps (b) disapproves of but is willing to concede to citizens (including the law-abiding) but only at a discouraging price?
In other words, in evaluating the moral content of a law what matters most for Finnis is not the intent of the lawmaker but rather the underlying behavior that the lawmaker is trying to regulate, in particular, whether a given behavior promotes or hinders the common good, i.e. whether such behavior promotes human cooperation and contributes to the solution of whatever collective action problem that the lawmaker is trying to solve. So, the tax/penalty distinction is a proxy for a law’s moral content: laws enforced via taxes regulate conduct that the lawmaker regards as compatible with the common good (i.e. human cooperation), while laws enforced via penalties involve conduct that the lawmaker deems to be incompatible with the common good.
This is a beautiful theory, and I appreciate how Finnis defines the common good in terms of human cooperation and the solution of collective action problems. That said, I will simply restate my previous objections to Finnis’s theory in the form of three Socratic questions:
- Why is human cooperation and the solution of social dilemmas and collective action problems a moral imperative as opposed to just a practical one?
- Why should we accept as authoritative the lawmaker’s solutions to our social dilemmas and collective action problems?
- And why is law and legal regulation a morally good method for solving our social dilemmas and collective action problems?
For now, it suffices to say that the main weaknesses with Finnis’s theory of law is that it does not grapple with our Socratic questions; instead, Finnis appears to take the answers to them for granted. (If you don’t believe me, check out the top of page 335.) In any case, we will conclude our review of Chapter XI in our next post.