Rainy day readings

My wife and I are in the Atlanta area this weekend, but the forecast calls for lots of rain. Perfect weather for reading! (We will return to “Natural Law and Natural Rights” on Monday.)

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Critique of rights-talk: three key points

Before we wrap up our review of “Natural Law and Natural Rights” (NLNR), I want to take a moment to sum up my protracted two-part Coasean critique of rights-talk (here is part one and here is part two) by making three key points:

  • Key Point #1: To assert a moral or legal right is to pose a series of challenging questions: what is the scope of that right, and how will or should it be enforced (if at all)? Also, who is the obligor of that right, and who is its beneficiary?
  • Key Point #2: The assertion or exercise of a right will almost always generate a new set of conflicts at many different levels, including (1) conflicts with other rights; (2) conflicts with other rights-holders; and (3) conflicts with public officials about the proper interpretation and application of the right.
  • Key Point #3: My Coasean critique of rights-talk not only applies to Finnis’s work. It also applies to Robert Nozick’s major premise in Anarchy, state, and utopia (1974, p. ix): “Individuals have rights, and there are things no person or group may do to them (without violating their rights).”

For all of these reasons, my personal preference is to focus on duties first (i.e. on the cost-side of the reciprocal rights-duties equation), rather than on rights. As it happens, Professor Finnis devotes an entire chapter of NLNR to the topic of “obligation” (Chapter XI), so will I will proceed with my review of Finnis on Monday.

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What about duties?

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A Coasean critique of rights-talk, part 2

In response to Professor Finnis’s analysis of rights in Chapter VIII of his book on “Natural Law and Natural Rights,” we began to present a general critique of rights-talk in our previous post. Specifically, we surveyed Ronald Coase’s economic analysis of the problem of harmful effects, using his classic example of cattle trespass. In this post, I will now explain the connection between Coase’s economic analysis of harms and the logic of rights. Simply put, the connection is this: Continue reading

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A Coasean critique of rights-talk (review of Chapter VIII, part 1)

We now proceed to Chapter VIII of “Natural Law and Natural Rights.” Among other things, Professor Finnis revisits W. N. Hohfeld’s classic taxonomy of rights (see pp. 199-205), delves into the history of the language of rights (pp. 206-210), and even scrutinizes the finer points of the Universal Declaration of Human Rights (pp. 211-218). In the course of this erudite exploration of the logic and history of rights, Finnis makes a number of insightful observations, but Professor Finnis’s “specification of rights” in the last part of Chapter VIII (pp. 218-226) is unsatisfactory, to put it mildly. Why? Because Finnis is operating under the fundamental or axiomatic assumptions that “there are absolute human rights” (p. 225) and that “the maintenance of human rights is a fundamental component of the common good” (p, 218). But these axioms invite certain questions that Finnis himself refuses to answer. What are these absolute rights? How do we define the “common good”? Continue reading

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Finnis versus Nozick (partial review of Chapter VII)

We now proceed to Chapter VII of “Natural law and natural rights,” the chapter on justice. Alas, Professor Finnis’s beautiful theory of justice is built on theoretical quicksand, for it is premised on his view of the common good, and we have already demolished Prof Finnis’s circular and vacuous theory of the common good in our previous post. To the extent “the objective of justice is … the common good” (p. 174), to quote Finnis’s own words, and to the extent the concept of the common good is just meaningless babble, we don’t have much more to say about Finnis’s conception of justice in Chapter VII. Why beat a dead theoretical horse? That said, there is one part of Chapter VII that I will discuss in more detail in this post: Professor Finnis’s moralistic critique of Robert Nozick’s critique of taxation. Continue reading

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Good common goods and bad common goods (review of Chapter VI)

Note: This part of our review of “Natural law and natural rights” (NLNR) was revised on 17 May 2019. (In fairness to Finnis we added an important clarification below the cartoon.)

We now proceed to Chapter VI of NLNR, though, recall from the previous chapter Professor Finnis’s master list of moral criteria–criteria for evaluating the morality of our choices. Among other things, Finnis asserts morality requires that one’s choices must not only be consistent with “the common good of one’s communities” (p. 125), but must also “foster[] and favor[]” this common good. Finnis, however, doesn’t have much to say (only 47 words!) about this common good criterion in Chapter V; instead, he devotes all of Chapter VI to it. Although Finnis makes a number of excellent points in this chapter, here is where Professor Finnis’s natural law theory will begin to unravel. I shall limit myself to pointing out the good, the bad, and the ugly (theoretically-speaking) aspects of this chapter:

1. The Good. The best part of Chapter VI is Finnis’s attempt to define the concepts of “society” and “community”, two notoriously loose and slippery concepts. According to Finnis (p. 152, footnote omitted), it is the “sharing of aim rather than multiplicity of interaction [that] is constitutive of human groups, communities, societies.” In other words, a group can be said to exist when two or more people work, play, plan a heist, or whatever “with a view toward a shared objective” (p. 153). I would only add that groups thus defined might have more than one “shared objective” and that such multiple objectives might conflict with each other.

2. The Bad. Professor Finnis spends most of Chapter VI propounding a master taxonomy of groups. In particular, Finnis identifies four major types of group or community, depending on the group’s shared objectives. Some groups’ purpose is to promote play. Other groups are motivated by business profit. And still other groups are grounded in friendship. But according to Finnis, the most all-encompassing or “complete” group is that of the polis or the political community (see VI.6). Ok, fine, but is it just me, or is there a gaping hole in Finnis’s taxonomy? Where is the family, however defined?

3. The Ugly. Putting aside the problem of groups and polities with multiple and conflicting objectives (cf. James Madison in Federalist #10), we still have the problem of defining what we mean when we talk about the “common good.” This is a huge problem for Finnis because a group’s shared objective might be a nefarious one, like planning a heist or a murder, so we are going to need some additional criterion to distinguish good common goods from bad common goods. But alas, Finnis is unable to provide such an impossible criterion. In the end, Finnis succumbs to the most circular and lame-ass possible definition of the common good (p. 156): “The common good in [my] sense is a frequent or at least a justified meaning of the phrases ‘the general welfare’ or ‘the public interest’.” Have we come all this way–156 pages of the most dense and esoteric moral philosophizing–only to arrive at a circular truism?*

Let’s see whether Finnis can break out of this logical circle when we proceed to Chapter VII of NLNR, the chapter devoted to justice, in our next post …

Image result for circular reasoning
*Later (especially in Chs. IX, X, and XI), Finnis will provide a much better and more workable definition of “the common good”; in particular, he will define the common good in terms of our ability to promote human cooperation and solve collective action problems. Still, our third objection (see point #3) above still stands, since men may cooperate in order to pursue selfish or evil ends, so we will still need some higher-level theory to help us distinguish between good common goods and bad common goods, but generally speaking, we agree with Finnis that one of the main purposes of laws and norms is to promote human cooperation and solve collective action problems.
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The morality of choice (review of Chapter V, or exercises in mental masturbation)

Let’s now turn to Chapter V of “Natural law and natural rights,” the most important chapter in Professor Finnis’s beautiful book. This chapter is a must-read because Professor Finnis does three big things in this chapter: (1) he presents a powerful critique of consequentialism; (2) he locates the source of morality; and (3) he sets forth specific criteria for deciding when a choice is consistent or not with morality. We shall discuss each one of these themes in turn: Continue reading

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