prior probability

Can we cure ourselves of our factious spirit? Alas, as James Madison teaches us in the fifth and sixth paragraphs of Federalist #10, any attempt to address the root causes of factions is going to end in disaster. Either we restrict people’s freedom to create and join factions, or we try to impose on everyone “the same opinions, the same passions, and the same interests.” Hell no!, says Madison in essay ten. Yes, factions are bad, but any attempt to remove their causes are going to be far worse. Thank you, Mr Madison: that has to be one of the most important political lessons of all time, a lesson lost on so many serious scholars, sundry politicians, and assorted do-gooders.

Let’s consider the second solution first. Unless you are one of those ‘serious’ scholars who take the crazy and communistic prescriptions in Plato’s Republic seriously, the latter solution is pure folly, especially given human psychology and given “the diversity in the faculties of men.” Moreover, as Madison correctly notes–and as our other intellectual hero Robert Nozick would confirm with his irrefutable Wilt Chamberlain argument–, an unequal distribution of property will inevitably arise from the diversity of our skills and talents. For Madison, the whole point of law and government is to protect our ability to make a living: “The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.”

So, what about the first “solution”; why not impose practical limits or reasonable requirements à la John Finnis on our ability to create and join factions in the first place? Again, hell to the no!, says Madison. The cure (restricting liberty) is far worse than the disease (the mischiefs of factions)! In what is perhaps the most memorable sentence in Federalist #10, Madison propounds one of the most beautiful, haunting, and powerful metaphors in the annals of political philosophy. He compares liberty to air: “Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.” Madison’s fire metaphor is not only memorable; it is spot on!

Simply put, unless we are willing sacrifice our freedoms or willing to impose the equivalent of martial law, there is no way of removing the root causes of faction. Factions are inevitable. Given this reality, the best we can do is to try to control their effects, i.e. limit the damage that factions can do. Stay tuned. It is here where Madison will make one of the most original and surprising political arguments of all time …

We have thus far diagnosed the main causes and dangers of factions, but before proceeding to possible cures, I want us to carefully examine the eighth paragraph of Federalist #10, the one that famously begins “No man is allowed to be a judge in his own cause …” and one of my favorite parts of essay ten. Although this modest paragraph contains only eight sentences of varying lengths totaling a mere 267 words, in that compact amount of space Madison not only paints an accurate, compelling, and realistic picture of law and politics centuries before James Buchanan and Gordon Tullock established “public choice theory” (look it up!); he also totally obliterates Finnis’s common good theory of law.

Specifically, Madison explains how the lawmaking process is not the product of rational deliberation or practical realizations of the common good a la Finnis. Instead, it is really a cutthroat competition or mad scramble among competing factions, who are simply attempting to promote their own preferred ideological and economic interests at the expense of everyone else! In the immortal words of Madison (emphasis added by us), “… what are many of the most important acts of legislation, but so many judicial determinations … concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine?” Simply put, factions taint or distort the lawmaking process. Madison then provides several examples to illustrate his point (emphasis added): “Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail.”

But Madison saves the best–I mean, worst–for last. The worst form of self-interested lawmaking is the tax code (emphasis added): “The apportionment of taxes … is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.” This is why Finnis’s project is doomed to fail; this is why calls for greater deliberation are in vain: because in politics and law money talks; bullshit walks. However much factions (pressure groups, lobbies, etc.) may try to dress up their positions in terms of the common good or the public interest, the reality is that factions are going to do everything possible to manipulate the legislative process to promote their own selfish economic or ideological ends.

Now that Madison has painted for us a far more realistic picture of law and politics, how do we counteract or control “this dangerous vice” (i.e. self-interested factions)? We shall address this crucial question in our next few posts, for it turns out that there are several possible solutions to the dangers of faction but most of these remedies are either ineffectual or produce more harm than good …

Image Credit: Thomas Hawk (via Flickr)

In our previous post, we reformulated James Madison’s broad definition of “faction” and restated the litany of dangers that such factions pose to the rule of law. Here, we will diagnose the main causes of “this dangerous vice.” Simply put, why are factions created, and why do they continue to endure? In the seventh paragraph of Federalist #10, Madison identifies several sources of factions. One reason for our factious spirit is “the zeal for different opinions” in matters of religion and politics. Another source of factions is our psychology, specifically, our “attachment to different leaders.” Yet another cause is economic: “the various and unequal distribution of property.” Madison’s actual words are so eloquent–his sentences have such a lasting literary quality to them–that to paraphrase them is to do Federalist #10 an injustice. Mr Madison’s precise and meticulous diagnosis of the causes of faction is thus worth quoting in full:

1. Religion and politics, or in Madison’s words: “a zeal for different opinions concerning religion, concerning government, and many other points as well of speculation as of practice.” Simply put, people will worship different gods and hold heterogeneous beliefs about politics, law, and morality.

2. Human psychology and the cult of celebrity, or in the words of Madison: “an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions ….” Think of Kim K. or Cardi B. (both of whom are pictured below) or other contemporary celebrities when you conjure up this latter category of persons with interesting fortunes. Think of Barack Obama, Donald Trump, and other ambitious leaders when you picture the former category of persons contending for power.

3. Economic causes: “But the most common and durable source of factions,” Madison explains, “has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views.” In other words, people will develop competing financial and class interests, depending on what they do for a living. (As an aside, check out the chart below for a modern-day confirmation of Madison’s prescient economic thesis.)

People are thus motivated to create and join factions for a wide variety of reasons. As a result, given our heterogeneous political and religious beliefs, given the realities of human psychology, and given the division of labor and the uneven distribution of wealth, factions are here to stay. They are an inescapable feature of our legal and political worlds. Ok, but why are factions so dangerous? Why are they the “mortal diseases under which popular governments have everywhere perished“? Is Madison’s critique of factions just cheap talk or verbal hyperbole, or are factions really to be feared? Stay tuned …

As promised, we shall now begin our review of Federalist #10, one of the many erudite essays James Madison penned in 1787 and 1788 in support of the Constitution during the tumultous ratification process. Madison devotes essay ten to the dangers of “faction.” He defines this term broadly in the second paragraph of his classic essay as follows: “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest ….” In other words, factions include all the major and minor players in civil society, including business firms and trade associations; single-issue lobbies and pressure groups; non-profits and NGOs; even religious organizations and political parties. (As an aside, it’s worth taking a moment to compare Madison’s broad definition of factions with Finnis’s more narrow master taxonomy of groups in Chapter VI of NLNR.)

So, why does Madison devote an entire essay to the topic of factions? Because factions are dangerous! At best, they erode the moral values of fairness and justice; at worst, factions can distort democracy and subvert the rule of law. The first full paragraph of Federalist #10 thus describes the many grave dangers posed by factions, dangers such as “instability, injustice, and confusion.” Madison uses strong language here; he does not mince words. He refers to factions as “mortal diseases” and “this dangerous vice.”  Why are factions so dangerous? Because, as Madison makes clear, factions taint the lawmaking process. When factions dominate the legal and political process, laws “are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” As a result, factions not only produce “unsteadiness and injustice“; they are also the reason why “popular governments have everywhere perished.”

Before proceeding, I want you to take a moment to compare Madison’s pronounced picture of the rough-and-tumble world of factions with the sundry idealistic and fictional worlds described by so many political philosophers, including Jean-Jacques Rousseau’s “general will,” John Rawls’s “original position,” John Finnis’s “common good” theory of law, or Robert Nozick’s “invisible hand” explanation of the state. Now that Madison has painted this Hobbesian picture of the self-interested nature of law and politics, he will devote the remainder of his essay explaining the main causes of factions–why factions are inevitable features of the legal and political landscape–and weighing the pros and cons of possible solutions to this danger. We will thus continue our extended review of Federalist #10 in our next post …

Thus begins James Madison’s essay Federalist Paper No. 10, and thus begins my extended detour into factions, law, and politics. This classic essay is addressed to the people of New York because it was first published on 23 November 1787 in The New York Packet, a popular periodical that was published in NYC from May 16, 1785 to January 26, 1792. (Here is a complete list of now-defunct NYC newspapers.)

Before we delve into the details of essay ten, here is some background. A draft of a new U.S. Constitution had been proposed to the 13 States then in existence in September of 1787, but this new constitution would not be legally binding on anyone unless it was ratified by at least nine of them. (See Article VII of the original Constitution: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”) The New York convention (which would meet in June of 1788) would thus prove to be a crucial test for our new national charter; the future of our republic hung in the balance.

Would the New York convention vote to ratify or reject the proposed constitution? At the time, the outcome was highly uncertain, and if New York ended up rejecting the constitution, the ratification process would likely be doomed! Enter James Madison, John Jay, and Alexander Hamilton, who decided to write a series of weekly articles and short essays–now known collectively as “The Federalist Papers”–in order to drum up public support for the new constitution. In all, they wrote 85 popular essays praising the virtues of the new constitution, essays that would help change the course of history. (Check out the musical tribute to The Federalist Papers from the Broadway show Hamilton below.) Of these 85 papers, Number Ten is my all-time favorite. Here, Mr Madison will discuss the dangers of “domestic faction” and propose some possible cures. In the process of writing this erudite essay, Madison will also paint a far more realistic picture of law and morals than Finnis does. Stay tuned. We will begin exploring the substance of Federalist #10 in earnest in our next post.

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.

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.

In our previous post, we explored Finnis’s formulation of legal and moral duties. For Finnis, laws generate two distinct types of duties: legal obligations and moral ones. But what is the content of these duties, and what is their ultimate source? Finnis will explore these key questions in the remainder of Chapter XI of NLNR (i.e. subsections XI.5 through XI.9). First, Finnis poses the following fundamental question in subsection five: What legal duties does contract law impose on persons who make legally-binding promises?

As Prof Finnis correctly points out (p. 321), “There is the controversy amongst lawyers about the legal obligation created by a contract: [a] Is it to perform what was undertaken, or [b] is it no more than an obligation to pay compensatory damages to the other party in the event of one’s non-performance?” The latter view can be traced back to the great Oliver Wendell Holmes. For Holmes, “the duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it,—and nothing else.” On this Holmesian view, when you make a legally-binding promise to another person, your legal duty is to “perform or pay.” Simply put, the law gives you a choice: the law allows you to choose between keeping your promise or paying money damages to the other person if you decide not to keep your promise.

Some legal scholars, however, like Finnis himself and Seana Shiffrin, disagree with this Holmesian or “perform or pay” conception of one’s legal duties under the common law of contracts. For Finnis (and for Shiffrin too), the act of breaching a contract is not just an immoral act; it is an unlawful act. Therefore, the proper remedy for a breach of contract should not be limited to the mere payment of money damages; the proper remedy should be full on specific performance (p. 324): “allegiance to the legal system as a whole requires … that one perform what one undertook; offering or being willing to pay damages, or paying damages when assessed, does not suffice.” Let’s call Finnis’s hardcore view of contract duties the “specific performance” conception of legally-binding promises.

Now, how do we choose or decide between these two competing conceptions of contract law? In short, which theory–the Holmesian view or the hardcore one–is more likely to be true? Is this just an aesthetic question, or is there some reliable way of testing the truth values of either contract theory? For his part, Finnis selectively cites a handful of English cases in support of his hardcore view (see the sundry cases cited by Finnis on pp. 323-324), though his is a distorted picture of the common law. In reality, judges rarely order the remedy of specific performance in cases involving broken contracts. (As an aside, without getting bogged down in the details of the common law, I should add that the common law is far more complex and sophisticated than Finnis and most legal philosophers give it credit for. By way of example, see the image below, summarizing the law of contract remedies.)

But Finnis provides an additional reason against the Holmesian view. According to Finnis (p. 324), “contracts are upheld by the law for the sake of the common good, which is positively enhanced (i) by the co-ordination of action, and solution of co-ordination problems …, and (ii) by the continued existence of a social practice which actively encourages such fully co-ordinated performance and discourages non-performance.” In other words, the law enforces certain promises in order to promote human cooperation and facilitate the solution of collective action problems. Stated this way, it is now easy to spot the fundamental flaw in Finnis’s analysis. If the level of social cooperation is going to be our yardstick or criterion of theory choice in this domain (and, by the way, we think that this is a good yardstick), it is an empirical question whether the Holmesian view (“perform or pay”) or the hardcore/Finnian “specific performance” view of contracts does a better job of promoting social cooperation. In fact, it is quite possible that the hardcore or Finnian view of contract liability might actually dissuade or discourage persons and business firms from entering into contracts, for fear that a judge might indeed order specific performance in the event of breach instead of the more practical remedy of money damages.

Whether the hardcore view of contract liability is correct or not–and as a matter of law, it is not, except in some special cases–, Professor Finnis explores another deep and fascinating question in subsections six and seven of Chapter XI of NLNR: what moral duties does the law generate? We will proceed to XI.6 and XI.7 on Monday.

Image credit: homermac64

Professor Finnis compares and contrasts two major types of “obligation” in subsections three and four of NLNR: moral duties, such as the general moral duty to keep one’s promises, and legal duties, such as the general legal duty to perform one’s legally-binding contractual obligations. According to the learned professor, both types of duties embody social practices that help promote the common good (i.e. both are methods of promoting cooperation and solving collective action problems), but the main difference between moral and legal duties is this: moral duties are variable, while legal duties, by contrast, are invariant.

Consider the general moral duty to keep one’s promises. From a moral perspective, the binding force of promises is often feeble at best, or as Finnis himself correctly notes (p. 308-309): “… the obligation of promises is very variable, and is often quite weak. … a promise is usually an exclusionary reason that can be defeated by some countervailing reasons, often by a wide range of readily available reasons,” such as an unforeseen change in the circumstances of one or both of the parties. Legal duties, by contrast, are formally invariant, for the binding force of legal duties is “black-and-white” (p. 312, p. 314), or in the words of Finnis, “There are, legally speaking, no degrees of legal obligation ….” (p. 309).

For my part, Finnis’s point about the degrees of obligation really captured my imagination, but is Finnis’s tidy picture of variable or mutable moral duties and invariant or all-or-nothing legal duties completely wrong? In short, isn’t it the other way around? For instance, aren’t moral duties–particularly from a Kantian perspective–supposed to be categorical, invariant, and universal, and by contrast, aren’t legal duties generally weak and ineffectual (when was the last time you saw anyone driving under the speed limit?), especially given the costs and vagaries of enforcing legal duties?

There are thus two gaping holes in Finnis’s analysis of legal and moral duties. One defect is theoretical: Finnis’s abject refusal to engage the ideas of ‘law-and-economics.’ Simply put, from a theoretical or ‘law-and-economics’ perspective, one would expect the actual efficacy of legal or moral duties to depend not on some abstract theory of obligation but rather on two key variables: the probability and severity of punishment. Worse yet, Finnis ignores two key features of all real-world legal systems. One is the reality of prosecutorial and public agency discretion. Many (most?) laws and regulations are under-enforced, since public prosecutors and regulatory agencies lack sufficient resources to apprehend or prosecute all law-breakers. The other key feature that Finnis doesn’t even mention is the fact that most legal duties are privately enforced via civil lawsuits, and the enforcement of such private wrongs, like torts and breaches of contract, is uneven and variable.

There is an additional anomaly in Prof Finnis’s analysis of legal duties, for Finnis draws a further distinction between one’s legal obligation to obey the law and one’s moral obligation to do so (p. 318, emphasis in original): “Like the obligation of promises, the moral obligation to obey each law is variable in force. It will vary according to the subject-matter of the law and the circumstances of a possible violation; for some subject-matters are in greater need of legal regulation than others, and some violations of law make a greater rent in the fabric of the law than others.” Wait, so we now get to pick and choose which laws we want to obey? But perhaps the biggest problem with Finnis’s analysis of moral and legal duties thus far is that his theory is completely untestable. His claim about the invariance of legal duties might be true in some ideal world or at some level of generality, but there is no way of testing the truth of this claim. In sum, since most offenses go undetected and since so few laws are fully enforced, what difference, if any, does the invariance of legal duties make in practice? Hardly any … I am beginning to think that if I want to defend natural law and natural rights (which I do!), I am going to have to start from scratch and do the job myself. Before we attempt such a Sisyphean task, however, we will proceed to subsection XI.5 of NLNR in our next post.

Professor Finnis addresses some fascinating questions in subsection two of Chapter XI. Specifically, what is a promise, and why is a promise morally binding? To his credit, Prof Finnis correctly notes that the practice of making promises can take many forms (p. 300): “It need not … be assumed that there is only one ‘promising’ practice in any given community; there can indeed be many, containing the same basic elements in varying forms, some wider, some narrower, some more relaxed, others more stringent.”

So, what are these “same basic elements” that all promises share in common? According to Finnis, a promise has two basic elements: a communication of an intention from A to B, and B’s acceptance of this intention. (Or in Finnis’s own words (pp. 298-299): “Centrally, then, a promise is constituted if and only if (i) A communicates to B his intention to undertake, by that very act of communication …, an obligation to perform a certain action (or to see to it that certain actions are performed), and (ii) B accepts this undertaking in the interests of himself, or of A or of some third party, C.”) But at the same time, Finnis also identifies a serious objection to this definition of a promise, an objection first made by David Hume (pictured below): why should the mere utterance of certain words create a moral obligation? Or as Finnis acknowledges (pp. 299-300, emphasis in original): “there is no obligation-creating magic in uttering a sign signifying the creation of obligation. How, then, do promises bind?”

Prof Finnis then restates David Hume’s reciprocity-based solution to this problem: the reason why promises are morally binding is because of self-interest. According to Hume, it is in one’s self-interest to keep one’s promises because “if I do not perform my obligations to others, others will not perform their obligations to me” (p. 302). Finnis, by contrast, unequivocally rejects Hume’s reciprocity line of reasoning. For Finnis, the real reason why promises are morally binding is because the practice of making (and keeping) promises promotes the common good (p. 303): “if one is to be a person who favours and contributes to the common good, one must go along with the practice of promising.”

Alas, I call bullshit. Why? Because as I explained in a previous post (and as no less an authority as James Madison explains in Federalist #10), there is no such thing as a single or unifying “common good”. Instead, polities will consist of diverse factions and interest groups, and those factions and groups are going to have conflicting purposes and goals. We are thus with Hume and Madison and their public choice disciples like James Buchanan and Gordon Tullock on this one. In any case, even if we could identify such an all-encompassing common good or common purpose of a given group, Finnis fails to consider another theoretical problem: immoral or illegal promises. In other words, we need some way to distinguish good common goods from bad common goods. Since we have made this objection in a previous post, we won’t belabor it here. Instead, we will proceed to subsections three and four of Chapter XI in our next post …