prior probability

We have thus far reviewed Chapter XII and the first half of Chapter II of John Finnis’s beautiful book “Natural Law and Natural Rights.” (Recall that Professor Finnis’s preface invites us to begin with these chapters.) Chapter II is devoted to “some preliminary clarifications” (p. 24), and to my mind, the most important of these introductory ideas appears in the second half of Chapter II (subsections five, six, seven, and eight), where Prof Finnis grapples head-on with the horns of the is/ought dilemma in moral philosophy. In fact, as our friend and colleague Oliver Curry has pointed out, there are many versions of this dilemma. For his part, Professor Finnis focuses on the motive problem: how can knowledge of right and wrong motivate one to make morally-correct choices; or more simply put, how can reason motivate action?

To cut to the chase, here is where Prof Finnis wins us over, where he fully regains our confidence, where he rehabilitates his philosophical and scholarly credentials. For Prof Finnis openly and honestly acknowledges that David Hume was right (!), that there is indeed an unbridgeable logical gap between knowledge and action, between the worlds of “is” and “ought.” Rather than rehash the finer points of this old meta-philosophical problem (see slide below the fold), it suffices to say that this move is a major concession on Professor Finnis’s part, for all previous theories of natural law and human rights (even those of such giants as Thomas Aquinas and Hugo Grotius) end up committing the naturalistic fallacy of deriving a normative “ought” from a factual “is”. To put it bluntly, Professor Finnis is not just pointing out a fundamental flaw of conventional theories of natural law; he is also admitting that all such natural law theories are wrong! So yeah, Finnis has now grabbed our attention!

But how will Professor Finnis’s theory of natural law surmount the is/ought dilemma and address the concerns we have raised in our previous posts? We will proceed to Chapters III and IV in the next day or two …

Continue reading →

Although we have been extremely critical in our previous posts of John Finnis’s flawed and self-defeating reasoning, the learned professor rehabilitates himself in the third and fourth subsections of Chapter II, where he makes yet another preliminary clarification–this time about the role of axioms (or self-evident propositions) in legal theory and in the sciences. In Prof Finnis’s own eloquent words (p. 32):

… a good many of the principles of logic and mathematics employed in natural science … and in historical and archaeolog[y], are such that it would be absurd to say that they either have been proved or are in need of proof. But what is certain is that the natural sciences and in general all theoretical disciplines rest implicitly on epistemic principles, or norms of theoretical rationality, which are undemonstrated, indemonstrable, but self-evident in a manner strongly analogous to the self-evidence ascribed by Aquinas to the basic principles of [natural law].

This passage sounds like it could have been written by the philosopher of science Thomas S. Kuhn. In brief, Prof Finnis is pointing out the inevitable and essential role that Kuhnian paradigms play in human reasoning: there are some basic ideas or “underived first principles” that everyone assumes to be true, even in such scientific fields as mathematics and physics. So, why should law be an exception, Finnis is asking? For my part, I would add that paradigms can sometimes lead us astray (see image below). Moreover, what are these “self-evident” or underived propositions in the field of law (consider, for example, the Declaration of Independence of 1776), and why should we accept these propositions as true? We shall press on and continue our review of Finnis to find out …

Credit: Kaium Chowdhury

Yes, he did, in the second subsection of Chapter II. Before we explain why, recall that Professor Finnis is devoting this early chapter to make a series of “preliminary clarifications” (p. 24) before delving into the details of his theory of natural law. Alas, he ends up making another potential blunder; in fact, I dare say he shoots his embryonic natural law theory in the proverbial foot (no doubt unwittingly), for he concedes that natural law proper is indeterminate and not self-enforcing.

Let’s back up one step. To his credit, Finnis is attempting clarify the complex relation between natural law and positive law in II.2. Specifically, if Thomas Aquinas (“a paradigm ‘natural law theorist’”) is correct that “positive law derives its validity from natural law” (p. 28), then why do we need man-made law to supplement natural law? Why don’t men dispense with man-made law altogether and agree to be ruled directly by the dictates of natural law? According to Finnis’s reading of Aquinas, there are two reasons why we cannot dispense with positive law. One reason is that natural law is too general to be of any help in the real world. Or to paraphrase Prof Finnis himself (p. 28), the principles of natural law are too general to solve any specific co-ordination problems that an actual community might confront. (In modern parlance, we can call this first problem “the level of generality problem.”)

The other reason we need positive law is that natural law is not self-enforcing. Without man-made law, “the need for compulsion, to force people to act reasonably” (p. 29) would go unmet. (Let’s call this second problem “the incentive problem.”) But these two points now pose another embarrassing problem for Finnis. Aside from being tautological (see our previous post), if natural law principles are also indeterminate and not even self-enforcing, then natural law is at best a redundant legal system or at worst a useless one. So, why not dispense with natural law?! Rest assured, we will return to this troublesome question as we continue our review of Finnis’s theory in our next post …

As promised, we now proceed to Chapter II of “Natural Law and Natural Rights.” Professor Finnis begins this chapter by clearing his throat, so to speak, and announcing that his “present purpose … is not to anticipate later chapters, but to make some preliminary clarifications” (p. 22). The main clarification he makes in the first subsection of Chapter II is to point out a fundamental distinction between natural law and theories of natural law–between “discourse about natural law and discourse about … doctrines of natural law” (p. 23). In summary, natural law proper is timeless and ahistorical (its content is constant and unchanging), while theories of natural law are contingent and historical (the content of these theories can change over time, depending on the time and place in which a given natural law theory was developed).

In addition, Professor Finnis further states: “This is a book about natural law [and not about previous theories of natural law]. It expounds or sets out a theory of natural law, but is not about that theory” (p. 23, emphasis in original). But Prof Finnis’s fundamental distinction between natural law proper and derivative theories of natural law raises a difficult and embarrassing question. If natural law and theories about natural law are two separate subject matters, then how could we ever discover–let alone “test” or falsify–the truth of any particular theory of natural law, including Prof Finnis’s own pet theory? Isn’t such a task an impossible one, or more to the point, are not all theories of natural law (as opposed to natural law proper) tautological? Regardless, we will continue our review of Chapter II in our next post.

Thus far, we have ripped to pieces the main arguments in Chapter XII of “Natural Law and Natural Rights.” Specifically, we have explained:

1. Why Professor Finnis’s “practical reasonableness” criterion is indeterminate and idiosyncratic (see our April 23 post);
2. Why his master-taxonomy of unjust laws is an ad hoc and shaky edifice built on the sands of his indeterminate and idiosyncratic reasonableness criterion (see our April 24 post “Finnis’s hodge-podge“); and
3. Why his natural law theory is ultimately self-defeating and toothless, since according to Finnis, we still have prudential reasons to comply with unjust laws under his collateral effects doctrine (see our April 25 post “Finnis steps back from the precipice“).

This three-pronged critique of Professor Finnis’s natural law theory has been especially painful for us, as we are not legal positivists. We believe in natural rights and in the existence of a natural or universal law. Genocide, for example, is morally wrong regardless whether there are man-made laws against genocide or whether such laws are enforced or not. So, to avoid ending on a negative note, I want to conclude my review of Chapter XII by remarking on one aspect of this chapter that I really liked: Professor Finnis’s rebuke of such legal positivists as John Austin and H.L.A. Hart and of the idea that law and ethics are two separate domains.

In summary, Prof Finnis provides many powerful reasons why law and ethics are inseparable. At the academic or theoretical level (see, e.g., page 358), any attempt to define or explain of the concept of law requires an analysis of cultural norms and moral values because legal systems (however defined) are always embedded in particular communities and cultures with particular background norms and values. Put another way, what we teach our children about right and wrong is relevant to our understanding of law when we become adults.

Moreover, man-made or “positive” law is infused with morality at many other levels on a day-to-day basis as well (see, e.g., page 362). When legislators make laws, their conceptions of justice and morality will no doubt come into play as they debate bills and vote to enact or repeal legislation. When executive officials enforce laws, they will necessarily have wide discretion and enormous flexibility in deciding which laws to enforce and how to enforce them. And when judges interpret laws and resolve disputes, their judicial decisions are often based on hunches, on their sense of “equity” and fairness. So, when we talk about law at all these levels, how can we not talk about such moral ideas as justice, reciprocity, trust, and virtue?

In short, despite its many serious flaws (see our three-pronged critique above), Professor Finnis’s work is still well worth reading and discussing, and so following the self-recommendation in his first preface, we will proceed to Chapter II of “Natural Law and Natural Right” in our next post …

Professor Finnis explores one of the most difficult and fascinating moral questions in subsection 3 of Chapter XII: “How does injustice … affect the obligation to obey the law?” Or more simply put, Does one have a duty to obey an unjust law? And in the process of answering these fundamental questions, Finnis demonstrates a high level of philosophical sophistication and scholarly erudition. To begin with, Finnis restates or “reframes” his key question in four different ways: Continue reading →

Hey, what’s up? Let’s put on hold our previous objections to John Finnis’s theory of law and proceed with our review of “Natural Law and Natural Rights,” shall we? By my count, Professor Finnis identifies no less than six separate categories of unjust laws in subsection 2 of Chapter XII: Continue reading →

We begin with Chapter XII of “Natural Law and Natural Rights” because Finnis himself recommends that we do so. This fascinating chapter is divided into four separate subsections (XII.1 through XII.4). In first subsection (XII.1), Finnis makes two important claims. One claim is about the classical natural law maxim lex injusta non est lex (unjust laws are not law). According to Finnis, this famous maxim is, at best, a “subordinate theorem” or “subordinate concern” of natural law theory. Instead,

the principal jurisprudential concern of a theory of natural law is … to identify the principles and limits of the Rule of Law, and to trace the ways in which sound laws, in all their positivity and mutability, are to be derived (not, usually, deduced) from unchanging principles–principles that have their force from their reasonableness, not from any originating acts or circumstances.

In other words, natural law is about distinguishing reasonable laws from unreasonable ones. Say what? Forgive me for raising the alarm and sounding such a skeptical tone at the outset of this review, but let me lay my cards or philosophical priors on the table. Simply put, the criterion of “reasonableness” has to be one of the most amorphous and ambiguous criteria ever devised. Why is “reasonableness” such a useless criterion in practice? Because it is so slippery and subjective, for there is no neutral or impartial standpoint from which to decide how reasonable a law is. That’s why! In short, whether a law is “reasonable” is always going to be in the eye of the beholder.

Finnis makes another important claim in the first section of Chapter XII, a claim about the source of legal authority or political power. According to Finnis, “The ultimate basis of rulers’ authority is the fact that they have the opportunity, and thus the responsibility, of furthering the common good by stipulating solutions to a community’s coordination problems.” For my part, I like Finnis’s original idea of equating the common good (an otherwise vague if not empty concept like “reasonableness”) with a group’s ability to solve co-ordination problems. Why? Because by making an explicit link between co-ordination problems and the common good, we can formulate a fruitful and testable theory of law: laws are good if and only if they are able to solve co-ordination problems.

That said, we can already spot two potential blind spots or gaps in Finnis’s theory of law. One gap is this: how do we define the relevant community? The other blind spot is based on our critique above of Finnis’s slippery “reasonableness” criterion. How do we decide when a solution to a co-ordination problem is “reasonable” or not? Some solutions to co-ordination problems might be effective or efficient, but at the same time such solutions might still be unfair or unjust. (Consider by way of example the quotation by Robert Pirsig below.) If so, we are back to where we started. Nevertheless, we will proceed with our review of Chapter XII in our next post.

Let’s begin our review of John Finnis’s treatise on “Natural Law and Natural Rights,” and let’s start with the preface. In fact, Finnis wrote two separate prefaces, one for the original edition of the book (published in 1980), and another for the second edition (2011). In the 2011 preface, Finnis identifies the image that appears on the cover of the second edition of his book (pictured below). It is an oil painting called White Saltbush that was painted in 1891 by Edward White. According to Finnis, this painting “depicts results of human purpose and action, to ‘subdue the earth’, in vast areas of marginal land in South Australia that are neither as near-desert as Lake Torrens nor as hospitable and fertile as Adelaide or the Barossa Valley ….” In other words, Finnis is using a work of art to dramatize and visualize his abstract theory of law.

In the preface to the first edition, Professor Finnis reveals two things of note. One is that he wrote most of his book in Africa. Specifically, he states that “the book was mainly written in Africa, in Chancellor College at the University of Malawi, in an environment at once congenial and conducive to contemplation of the problems of justice, law, authority, and rights.” This revelation thus poses an intriguing question: to what extent do Finnis’s travels in Africa influence his theory of law? The other revelation of note is Finnis’s recommendation to some of this readers to turn first to Chapter XII of his book, the chapter devoted to unjust laws: “And those who want to see, in advance, how [Finnis’s theory of law] yields an understanding very different from the accounts of ‘natural law’ in their textbooks of jurisprudence and philosophy might turn first to Chapter XII, and then perhaps to Chapter II.” We shall follow Finnis’s recommendation and proceed directly to Chapter XII in our next post …

Happy Easter! I put aside “Infinite Jest” during Holy Week in order to begin reading “Natural Law and Natural Rights,” a classic that I have been meaning to crack open for many years now. (The author of this erudite tome, the Australian legal philosopher John Finnis, is pictured below.) If you are fascinated by such timeless questions as “What is law?” or “What is the relation between law and morality?,” then stay tuned in, for I will restate and review some of the most salient ideas from Professor Finnis’s beautiful (but as we shall see, deeply flawed) book in my next few posts …