Classical and Modern Natural

Law Theories

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 Outline
• How is law known at the time of archaic age of
the Greeks?
• What was the Sophists’ view of law?
• What was Plato & Aristotle’s views about law?
• How did the Stoic view the nature of law?
• What were the views of St. Augustine?
• What were the views of St. Thomas?
• What are Finnis’ views about Natural Law?
Law at the time of Homer & Hesiod
• Law at the archaic age of Greeks is known
through the works & poetry of Homer (800
BC-701 BC) & Hesiod (700 BC)
• They mention that the Olympian god Zeus
gave law to mankind
• To him law was the order of peace founded on
fairness, obliging men to refrain from violence
and to submit their disputes to an arbiter
 The law of old Greeks
• There was no difference between law and
religion
• Religious persons played an important role in
the administration of Justice
• The king, as the supreme judge, was believed
to have been invested with his office &
authority by Zeus himself
 Sophists
• In the 5th BC in Greece philosophy was separated
from religion by Sophists
• Law was considered as a purely human invention,
born of expediency and alterable at will
• Protagoras asserted that man as an individual was
the measure of all things
• Took the view that there are two opinions on every
question
 Sophists
• Antiphon: no body can violate the laws of nature
with impunity but one who violates a law of the state
does not suffer either punishment or dishonour if
the violation remains undetected
• Callicles: proclaimed the right of the strong as a basic
postulate of natural as contrasted to conventional
law
• Nature in animal as well as human life rests on the
superiority of the stronger over the weaker
 Sophists
• Thrasymachus: laws were created by men &
groups in power to promote their own
advantages
 Plato (429-348)
• Thought that the Sophist have put justice upside
down
• Justice: “a man should do his work in the station of
life to which he was called by his capacities.”
• Was convinced of the natural inequality of men
• Believed in the classed system of society
• Gold, silver, iron and copper
 Plato
• Learned from his mistakes
• “The best thing of all is not full authority for
laws but rather full authority for a man who
understands the art of Kingship and has
wisdom”
 Plato
• Considered the non-law state as the most
perfect type of government but it required
men of the highest wisdom & infallibility of
judgment
• Proposed the “law state” as the 2nd best
alternative for the governance of man
• Favoured written codes at the end of his life
 Aristotle (384-322 BC)
• Paid more attention to the social conditions
• 2nd best alternative of state: a state based on
law as the only practicable means of achieving
the good life
• Rightly constituted laws, should be the final
sovereign
• These laws should be sovereign on every issue
 The Stoic Law of Nature
• Zeno (350-260): placed the concept of ‘nature’
in the center of their philosophical system
• For him the whole universe consisted of one
substance, and this was reason
• Considered reason as the basis of law and
justice
 Stoics
• Stoic philosophers developed a cosmopolitan
philosophy
• Their ultimate ideal was a world-state in which
all men would live together harmoniously
under the guidance of divine reason
 Cicero
• Cicero (106-43 BC): considered reason as the
dominating force in the universe
• Law is right reason in agreement with nature
• It’s of universal application, unchanging and
everlasting;
• It summons to duty by its commands
• Considered evil laws as not binding
 St. Augustine (354-430)
• Man was vitiated by original sin at the time of
his fall
• Church was the guardian of eternal law
• Can interfere at will with sinful institutions
• Has unconditional sovereignty
• State was needed as a means of keeping
peace on earth
 St. Thomas (1226-1274)
• Incorporated the element of reason into the
definition of law
• Classified law into 4:
• 1. eternal law: it is the divine reason and wisdom
directing all movements and actions in the universe
• 2. Natural law: man’s participation in the eternal law
 St. Thomas
• 3. divine law: law revealed by God
• 4. human law: an ordinance of reason for the
common good, made by him who has care of
the community, & promulgated
 Modern Natural Law: Finnis
• John Finnis defines natural law as "the set of
principles of practical reasonableness in ordering
human life and human community. ...”
• Finnis argues that the principles of natural law
are "traced out not only in moral philosophy or
ethics and 'individual‘ conduct, but also in
political philosophy and jurisprudence, in political
action, adjudication, and the life of the citizen."
 Finnis
• The theory that Finnis describes in Natural
Law and Natural Rights has come to be
considered "[t]he most authoritative modem
statement of natural law.”
 The new Natural Law theory
• Finnis argues that there are, first, a set of notions
that "indicate the basic forms of human flourishing
as goods to be pursued and realized" and that are
known to everyone who thinks about how they
should act.
• Finnis begins by discussing knowledge and describing
his theory of the importance of basic goods.
• Basic goods are irreducible, self-evident, "and even
unquestionable."
 Finnis
• every reasonable person would assent to the
value of these basic goods as objects of
human striving,
• these basic goods are "indemonstrable but
self-evident principles [that shape] our
practical reasoning.”
 Modern Natural Law: John Finnis
• There are 7 of these basic practical principles:
• 1. life,
• 2. knowledge,
• 3. play,
• 4. aesthetic experience,
• 5. friendship,
• 6. practical reasonableness and
• 7. religion
 7 Basic Goods
• These are the (ends, purposes, values) of
human life.
• They are established by the act of subjectively
reflecting on our character as human beings
 Finnis
• Finnis argues that the list of basic goods is
exhaustive
• "other objectives and forms of good will be
found .. . to be ways or combinations of ways
of pursuing ... and realizing .. . one of the
seven basic forms of good, or some
combination of them.“
 Finnis
• There is also no hierarchy within the list,
• thus, the basic goods are considered incommensurable
(having no common standard of measurement).
• Basic goods are "equally self-evidently a form of good.“
• None of the basic goods "can be analytically reduced to
being merely an aspect of any of the others, or to being
merely instrumental in the pursuit of any of the others,"
 Finnis
• "each one, when we focus on it, can
reasonably be regarded as the most
important."
• These goods are also pre-moral, in that they
do not "presuppose any moral judgment."
 John Finnis
• Basic goods are not known intuitively (known
without any direct evidence), but by an act of
intellect which, proceeding from felt inclinations
and aided by anthropological and psychological
evidence of what all human societies value,
grasps or discovers these categories of human
purpose as self-evident.
• "reference to the pursuit of knowledge makes
intelligible . . . any particular instance of the
human activity and commitment involved in such
pursuit."
 John Finnis
• Basic Goods are also indemonstrable.
• are not inferred or derived from anything.
• are underived
• Non-derivability in some cases amounts to lack of
justification or lack of objectivity.
• But in other cases it signifies self-evidence;
• these cases are to be found in every field of inquiry
 Finnis
• To illustrate his conception of self-evidence, Finnis
refers to the principles of rationality in theoretical
inquiries.
• One such principle is that the principles of logic, for
example the forms of deductive inference, are to be
used and adhered to in all one's thinking, even
though no non-circular proof of their validity is
possible (since any proof would employ them).
 Finnis
• Another is that an adequate reason why anything is
so rather than otherwise is to be expected, unless
one has reason not to expect such a reason.
• A third is that self-defeating theses are to be
abandoned.
• A fourth is that phenomena are to be regarded as
real unless there is some reason to distinguish
between appearance and reality.. .
 FPPR
• The principles of practical reason are derivations of
the first principle of practical reason ("FPPR"),
which states, "Good is to be done and pursued, and
evil is to be avoided."
• The basic requirements of practical reasonableness,
also referred to as basic practical principles, "are
specifications of the FPPR“ and "express the 'natural
law method' of working out the (moral) 'natural law'
from the first (pre-moral) 'principles of natural law."
 FPPR
• These principles show the reasons why, as
well as the ways in which, "there are things
that morally ought (not) to be done."
 Nine Principles of Practical Reason
• Finnis describes nine principles of practical reason that follow
the FPPR.
• These principles are:
• (1) having "a coherent plan of life,"
• (2) not having an arbitrary preference amongst the basic
goods,
• (3) not having an arbitrary preference amongst persons,
• (4) having a sense of detachment from all the specific and
limited projects one undertakes,
Nine Principles of Practical Reason
• (5) not abandoning general commitments lightly,
• (6) acting to bring about good with efficiency,
• (7) respecting every basic value in every act by never
choosing against a basic good,
• (8) favoring and fostering the common good of one's
communities, and
• (9) following one's conscience.
 First Principle of Morality (FPM)
• The first principle of morality ("FPM") states: "In
voluntarily acting for human goods and avoiding
what is opposed to them, “one ought to choose and
otherwise will those and only those possibilities
whose willing is compatible with integral human
fulfillment
• The FPM is "a guiding ideal rather than a realizable
idea" because it operates as a basic good and is
open-ended
 FPM
• "[i]t only moderates the interplay of [the]
reasons" given by the basic goods and allows
deliberation to be "thoroughly reasonable."
 First Principle of Morality (FPM)
• With the introduction of the FPM, Finnis provides a
morally perceptive rule that choices be compatible
with "integral human fulfillment.“
• The FPM and the principles of practical reason
present more specific moral norms to be derived,
thus fulfilling the third aspect of Finnis's theory
 Critique
• Basic goods are the basic aspects of one's well-being
and the "first principles of one's own practical
reasoning."
• An inquiry into the basic goods is a critical and
practical discipline where one asks: "What are the
basic aspects of my well-being?"
• The basic forms of good are things "to be pursued."
 Critique
• The proper question for Finnis is whether something
is a good in and of itself
• The basic goods are goods sought for their own sake.
• These goods are "properly called 'ends"' and are not
those goods which are instrumental and thus
considered "means.“
• These ends are to be considered "final ends" but not
in the sense of an objective and determinate final
end.
 Critique
• The basic human goods are final ends in that
"they are 'definite possibilities' intuited
independent of any other sort of knowledge.“
• These basic goods are not to be confused with
moral goods
 Critique
• Basic goods are broken into two categories:
• Substantive and reflexive.
• Life, knowledge, and play are substantive
goods,
• Aesthetic experience, sociability, practical
reasonableness, and religion are reflexive
goods.
 critique
• Reflexive goods must be "defined in terms of
human choice,"
• substantive goods provide reasons for making
choices that stand by themselves
 Critique
• Finnis makes clear that these basic goods are NOT to be
thought of as moral values.
• Stating that knowledge is good, or thinking of knowledge as a
value, is not the same as saying that knowledge is a moral
value.
• He says that knowledge is to be pursued since it is a good, and
the FRRP (first principle of one’s own practical reasoning) says
that goods are to be pursued
• Finnis is not saying that a moral obligation has been created
 Hittinger attack on Finnis
• Finnis's basic goods are to be thought of as intrinsically good
in that all of these values should be considered good for their
own sake and not for an instrumental purpose.
• Hittinger argues that the Grisez-Finnis "new natural law
theory, is a failure."
• The problem with this theory is that it fails to "interrelate
systematically practical reason with a philosophy of nature."
 Criticism
• Imagine a person on a Sunday morning that is faced
with the choice between going to church, playing
golf, or reading the Sunday paper.
• Each one of these options possesses certain values.
• Choosing one does not reflect negatively on the
others, but rather indicates the impossibility of
performing all three acts simultaneously.
 Criticism
• In Finnis's theory, the morally upright choice is determined by
a person acting as if the choice to play golf is not made in a
way that disrespects the other two goods.
• The morality of the choice is not, therefore, determined by an
intrinsic or objective difference of rank between the different
goods.
• Moral goodness is especially identified with a commitment to
superior values
 Criticism
• According to Hittinger, if a person "begins with an
obligation to all of the goods both individually and in
terms of their collateral realization then it is crucial
that some principle of order be introduced.“
• This principle of ordering becomes "even more
crucial" when the basic goods are "incommensurable
and irreducible" from their lack of an inherent
internal hierarchy
 Conclusion
• Unfortunately for Finnis, a reliance on considerations
of the common good does not resolve the issues
created by the insistence on the existence of a pre-
moral, non-hierarchical list of basic goods.
• If an actor chooses to change his life plan, it seems
that Finnis would require the actor to consider the
common good when making this decision.
 Conclusion
• Without the basic goods being subjected to a
hierarchal order, there exists a potential for the
common good to create a hierarchy of goods.
• If no inherent order of the goods exists, and the
common good or community always values life over
all other goods, then the actor's requirement to
foster the common good will necessitate that each
change in life plan always values life over other
goods
 End
Thank you
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