Jurisprudence

An International Journal of Legal and Political Thought

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Natural Law Beyond Finnis

Jonathan Crowe

To cite this article: Jonathan Crowe (2011) Natural Law Beyond Finnis, Jurisprudence, 2:2,
293-308, DOI: 10.5235/204033211798716871

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 (2011) 2(2) Jurisprudence 293–308

ARTICLES

Natural Law Beyond Finnis

Jonathan Crowe*

More than 30 years has passed since the publication of John Finnis’s seminal defence
of the natural law tradition in ethics, politics and jurisprudence, Natural Law and Nat-
ural Rights.1 Earlier this year, a revised edition was published, including a new
postscript responding to critics.2 A five-volume collection of Finnis’s essays, spanning
ethics, political philosophy, jurisprudence and religion, has also recently been
released.3 It is timely, then, to reflect upon the relevance of Finnis’s work to con-
temporary natural law thought. How has natural law scholarship developed since the
appearance of Natural Law and Natural Rights? What is the status of Finnis’s ideas
within the tradition today?
There is no doubt that the work of Finnis and the other ‘new natural law
theorists’, such as Germain Grisez and Joseph M Boyle,4 has heavily influenced
contemporary natural law thinking. The striking revival of interest in natural law

* Senior Lecturer, TC Beirne School of Law, University of Queensland, Australia. This article was writ-
ten during my time as a Visiting Scholar in the Philosophy Department at Georgetown University.
Earlier versions were presented at a Law and Philosophy Workshop in the Georgetown University Law
Center and as part of the Julius Stone Institute Seminar Series in the Law School at the University
of Sydney. I am grateful to all who participated in those discussions, particularly Judy Lichtenberg,
Tim Sellers, Kevin Walton and Robin West. I would also like to thank Bill Glod, Hillary Nye and the
anonymous referees for their helpful comments.
1 John Finnis, Natural Law and Natural Rights (Oxford University Press, 1980).
2 John Finnis, Natural Law and Natural Rights (Oxford University Press, 2nd edn 2011).
3 John Finnis, The Collected Essays of John Finnis, vols 1–5 (Oxford University Press, 2011).
4 Germain Grisez, The Way of the Lord Jesus: Christian Moral Principles (Franciscan Press, 1983); Germain
Grisez, Joseph M Boyle and John Finnis, Nuclear Deterrence, Morality and Realism (Oxford University
Press, 1987); Germain Grisez, Joseph M Boyle and John Finnis, ‘Practical Principles, Moral Truth and
Ultimate Ends’ (1987) 32 American Journal of Jurisprudence 99. Other authors associated with the label
include Robert P George, William E May and Christopher Tollefsen. See Robert P George, In Defense
of Natural Law (Oxford University Press, 2001); William E May, An Introduction to Moral Theology (Our
Sunday Visitor, 2nd edn 2003); Christopher Tollefsen, ‘Basic Goods, Practical Insight and External
Reasons’ in David S Oderberg and Timothy Chappell (eds), Human Values: New Essays on Ethics and
Natural Law (Palgrave, 2005) ch 2.

293
294 Jurisprudence

perspectives in recent years is substantially due to these authors. The last three
decades, however, have seen the emergence of a rich and diverse body of natural law
scholarship, much of which diverges in various ways from the views of the writers
mentioned above. This diversification of natural law thought has so far escaped the
attention of many outside the field.
This article seeks to clarify the relationship between the core claims of the new
natural law outlook and the more specific views of individual authors. The recent
diversification of natural law scholarship makes it important to distinguish the core
components of the new natural law framework from the various different versions
on offer. It is still widely thought that contemporary natural law theory is synonymous
with the views of the new natural law theorists. This has led many people who dis-
agree with the details of Finnis’s position—for example, his conservative stances on
various moral issues—to reject natural law ideas altogether. However, this is to
throw out the baby with the bathwater.
The article begins by discussing the place of the new natural law theory within
contemporary natural law thought. It then offers an account of the core claims of
the new natural law outlook in ethics, political philosophy and jurisprudence,
emphasising their compatibility with a range of ethical and philosophical view-
points. The article ends with a brief reflection on the future of natural law
scholarship, drawing a comparison with its traditional rival in jurisprudence, legal
positivism. I suggest that just as legal positivism has entered its post-Hartian phase,
so too are we entering the era of natural law beyond Finnis.

I. THE NEW NATURAL LAW THEORY

The new natural law theory, as we have seen, is no longer all that new. Its funda-
mental tenets were set out in works by Finnis and Grisez dating from the early 1980s.5
The primary inspiration for the new natural law theorists comes from the philo-
sophical theology of Thomas Aquinas; some of their most influential works are
framed, explicitly or implicitly, as commentaries on Aquinas’s writings.6 The new nat-
ural law theory, then, is strongly Thomist in methodology and content, while the
views of its proponents tend to fall within the mainstream of Catholic ethical
thought. This has led to a widespread perception of natural law theory as a distinc-
tively and perhaps necessarily Catholic viewpoint.
However, current natural law scholarship in both ethics and jurisprudence goes
significantly beyond the Finnis-Grisez outlook. Natural law ethics has recently been
developed by theorists such as Timothy Chappell, Gary Chartier, Alfonso Gómez-
Lobo, David S Oderberg and Mark C Murphy,7 while natural law jurisprudence has

5 See particularly Grisez (n 4); Finnis (n 1); John Finnis, Fundamentals of Ethics (Georgetown Univer-
sity Press, 1983).
6 See eg Grisez (n 4) xxv, xxviii; Finnis (n 1) vi; John Finnis, Aquinas: Moral, Political and Legal Theory
(Oxford University Press, 1998).
7 Timothy Chappell, Understanding Human Goods (Edinburgh University Press, 1998); Gary Chartier,
Economic Justice and Natural Law (Cambridge University Press, 2009); Alfonso Gómez-Lobo, Morality
 Natural Law Beyond Finnis 295

found expression in the work of (again) Murphy, Robert Alexy, Michael Detmold,
Mark Greenberg, Michael S Moore and Nigel Simmonds.8 The result has been the
emergence of a wider range of positions and a richer set of debates than one finds
in the new natural law theorists alone.
Members of this second wave of contemporary natural law theory depart from
the views of the new natural law theorists in various ways. They still regularly refer
to Aquinas,9 but their work frequently diverges in important respects from both
Aquinas’s writings and Catholic ethical teachings. They come from a range of philo-
sophical backgrounds and draw inspiration from a variety of religious and secular
moral traditions. Unfortunately, however, this diversification has yet to be fully
appreciated by many outside the field. It is still widely assumed that a scholar with
an interest in natural law theory must be a devout Catholic or, at least, hold con-
servative views on moral issues.
This outdated picture of natural law thought persists in different ways in ethics
and jurisprudence. There is an increasing awareness in normative ethics of the new
natural law framework. Nonetheless, courses and textbooks still tend to present the
field as a three-way tussle between consequentialism, deontology and virtue ethics,
neglecting the distinctive natural law position. If the natural law approach is pre-
sented, this is often done through the writings of classical authors and perhaps the
new natural law theorists. Students could be forgiven for thinking that the topic is
primarily of historical interest.
A similar paradigm can be observed in many law schools, where discussion of nat-
ural law perspectives often involves an exegesis of Finnis, along with some classical
viewpoints and perhaps the procedural natural law theory of Lon L Fuller.10 More
than one generation of law students has been taught to believe that contemporary
natural law begins and ends with Finnis. However, while Finnis’s work might plau-
sibly be called the beginning of contemporary natural law jurisprudence, it is far from
the end of the story.
One key feature distinguishing natural law jurisprudence from its main con-
temporary rival, legal positivism, is its emphasis on the necessary role of ethics in a
sound theory of the concept of law. Natural law jurisprudence holds that the best the-
ory of law is one that gives a central place to the moral basis of legal obligation; this
means that the natural law theorist, unlike her legal positivist counterpart, must

and the Human Goods (Georgetown University Press, 2002); David S Oderberg, Moral Theory: A Non-
Consequentialist Approach (Oxford University Press, 2000); Mark C Murphy, Natural Law and Practical
Rationality (Cambridge University Press, 2001).
8 Mark C Murphy, Natural Law in Jurisprudence and Politics (Cambridge University Press, 2006); Robert
Alexy, The Argument from Injustice (Oxford University Press, 2002); Michael Detmold, The Unity of Law
and Morality (Routledge and Kegan Paul, 1984); Mark Greenberg, ‘How Facts Make Law’ (2004) 10
Legal Theory 157; Michael S Moore, ‘Law as a Functional Kind’ in Robert P George (ed), Natural Law
Theory: Contemporary Essays (Oxford University Press 1992) ch 8 and ‘Law as Justice’ (2001) 18(1) Social
Philosophy and Policy 115; Nigel Simmonds, Law as a Moral Idea (Oxford University Press, 2008).
9 For instance, Murphy describes Aquinas as ‘the paradigmatic natural law theorist’: Murphy (n 8) 1.
10 Lon L Fuller, The Morality of Law (Yale University Press, rev edn 1969). Ronald Dworkin’s theory of
law is also widely taught, but it is debatable whether Dworkin is properly viewed as falling within the
natural law tradition, for reasons discussed later in this article.
296 Jurisprudence

defend an account of practical rationality, as well as a theory of the concept of law,

in order to flesh out her position.
In many law schools, however, the only natural law ethical framework students
encounter is that defended by Finnis, which many of them find stodgy and out-
moded, particularly in its treatment of sexual issues.11 The upshot is that such
students view natural law jurisprudence as discredited for reasons that do not relate
to the core claims of the theory. One cannot endorse the natural law outlook with-
out affirming the existence of objective values, but social conservatism is by no means
a necessary part of the picture.
A disjunction therefore exists between the contemporary diversity of natural law
scholarship and widespread perceptions of the field within both philosophy and law.
Why, then, have recent developments in natural law scholarship so far escaped wide-
spread notice? Three possible explanations come to mind. The first is simple inertia:
Finnis was the first contemporary author to offer a systematic and accessible defence
of natural law, so it is hardly surprising that his work is still the main point of refer-
ence for enquiry into the field.
A second possible reason is that contemporary natural law scholarship has
become splintered between the largely distinct academic fields of ethics and jurispru-
dence. On the whole, leading contemporary defenders of natural law ethics (such
as Chappell and Oderberg) have not been particularly interested in natural law
jurisprudence, while proponents of natural law jurisprudence (such as Alexy and
Moore) have often not endorsed natural law ethics. Murphy’s work is the exception
to this trend; beyond that, one has to go back to Finnis and Grisez to find a system-
atic and unified defence of the tradition.
The third and perhaps most significant reason relates to the Catholicism and
moral conservatism of the new natural law theorists. Finnis’s conservative views on
issues such as sex, marriage and abortion are widely known;12 other members of the
new natural law school, such as Robert P George,13 have played a prominent role in
public debates over these types of issues. Leaving aside the substance of these
debates, the frustration that liberal members of the legal academy feel with the new
natural law theorists’ interventions has no doubt contributed to a broader scepticism
towards the new natural law outlook.

11 For critical discussion of new natural law views on sexual ethics, see Stephen Macedo, ‘Against the
Old Sexual Morality of the New Natural Law’ in Robert P George (ed), Natural Law, Liberalism and
Morality (Oxford University Press, 1996) ch 2.
12 John Finnis, ‘The Rights and Wrongs of Abortion: A Reply to Judith Thomson’ (1973) 2 Philosophy
and Public Affairs 117; ‘Law, Morality and “Sexual Orientation”’ (1994) 69 Notre Dame Law Review 1049;
‘“Shameless Acts” in Colorado: Abuse of Scholarship in Constitutional Cases’ (1994) 7 Academic Ques-
tions 10; ‘The Good of Marriage and the Morality of Sexual Relations’ (1997) 42 American Journal of
Jurisprudence 97.
13 Robert P George, ‘“Shameless Acts” Revisited: Some Questions for Martha Nussbaum’ (1995) 9 Aca-
demic Questions 24 and ‘What’s Sex Got to Do With It? Marriage, Morality and Rationality’ (2004) 49
American Journal of Jurisprudence 63; Robert P George and Gerard V Bradley, ‘Marriage and the Lib-
eral Imagination’ (1995) 84 Georgetown Law Journal 301; Robert P George and Patrick Lee, ‘The Wrong
of Abortion’ in Andrew I Cohen and Christopher Wellman (eds), Contemporary Debates in Applied Ethics
(Oxford University Press, 2005) ch 1; Sherif Girgis, Robert P George and Ryan T Anderson, ‘What
is Marriage?’ (2010) 34 Harvard Journal of Law and Public Policy 245.
 Natural Law Beyond Finnis 297

II. THE CORE CLAIMS OF NATURAL LAW

I have claimed that contemporary natural law theory represents a distinctive tradi-
tion in ethics, political theory and jurisprudence, which is neither defined nor
exhausted by the specific views of the new natural law theorists. In order to make
good on this claim, it is necessary to outline the distinctive features of the strand of
natural law thought that has emerged from the work of the new natural law schol-
ars in a way that is sufficiently general to distinguish it from the positions of
individual writers. This is what I aim to do in the present section.
I will begin by examining the central features of the new natural law ethics, show-
ing how it provides a distinctive account of practical rationality. I will then turn briefly
to the new natural law view of politics, focusing on the pivotal notion of the common
good, before examining contemporary natural law jurisprudence. I hope to show
how the new natural law outlook provides a coherent and versatile framework for
exploring philosophical issues in each of these areas, while also showcasing some of
the diversity in recent natural law scholarship.
I mentioned above that contemporary natural law scholarship has become splin-
tered between distinct academic fields. I therefore take it as given that some authors
who view themselves as building on the new natural law tradition in a particular field,
such as ethics or political philosophy, may not endorse its core claims in another area,
such as jurisprudence. However, the claims converge in the work of authors such as
Finnis, Grisez and Murphy. They also exhibit an underlying conceptual unity, as I
hope to illustrate below.

Natural Law Ethics

The core claims of the new natural law ethics are perhaps best encapsulated by two
fundamental ideas: first, the plurality of both the basic forms of good and the asso-
ciated principles of practical reasonableness; and, second, the logical priority of the
good over the right. The first of these ideas provides the basis for the natural law cri-
tique of consequentialism, while the second distinguishes natural law ethics from
most common forms of deontology.
Both consequentialism and natural law theory hold that in order to know how
we should act, it is necessary first to understand the good. Right action then consists
in engaging with the good in reasonable and appropriate ways. Consequentialists say
that the proper way to engage with the good is to maximise it. Natural law theorists
say the correct approach is to participate in and respect it. Deontological theories,
on the other hand, hold that right action is not merely a matter of honouring the
good, but also depends on rights and duties.
Natural law theory is often regarded as a form of deontological ethics. This is
accurate, if ‘deontological’ is understood simply as meaning ‘non-consequentialist’.
However, the characterisation is problematic if it is taken to mean that natural law
theory depicts deontic standards, such as rights and duties, as analytically basic.
Unlike most non-consequentialist theories, natural law ethics denies that the right
is logically independent of the good.
298 Jurisprudence

The good concerns what objectives it is worthwhile for humans to pursue. Some-
thing is intrinsically good if it is worth pursuing in and of itself; and instrumentally
good if it is worth pursuing because it helps to achieve something else that is good.
This distinction raises the question: how many basic goods are there? Philosophers
have long been attracted to the idea that there are relatively few intrinsic goods: most
things worth pursuing are good because they help us to achieve something else of
value.
There are two broad schools of thought about the number of intrinsic goods.
Monism about the good holds that there is only one intrinsic good, while pluralism
holds that there is a plurality of such goods. Monism comes in many different
forms: according to some versions, the only basic good is pleasure or happiness; acc-
ording to others, it is preference satisfaction; for others, it is captured by the notion
of human well-being; and so forth.14
The right, on the other hand, concerns what makes particular actions right or
wrong. The traditional dispute between consequentialism and deontology is often
framed in terms of which of these issues claims analytical priority. Consequentialism
holds that the rightness of an action depends solely on its consequences; on this view,
we should first work out what counts as a good outcome, then perform the action
that brings about the greatest good. Deontological views, by contrast, hold that the
rightness or wrongness of an action depends on standards that do not simply reflect
the amount of good it produces. On this view, notions such as rules, rights and duties
are analytically basic to ethics: at least some of the standards that distinguish right
and wrong actions are logically independent of the good.
The combination of monism and consequentialism yields a simple and elegant
account of practical rationality. If there is only one intrinsic good—let us call it x—
then working out what action will lead to the greatest total good is simply a matter
of seeing how much x each action will produce. And if consequences are all that mat-
ter in deciding what to do, then the action that produces the most x is always the right
action to perform. This basic account of the good and the right is common to most
leading consequentialist theories.
Natural law ethics, however, rejects monism about the good. It holds that there
is a plurality of intrinsic goods, all of which are equally basic and none of which can
be reduced into any of the others. Natural law theorists differ in their accounts of
what exactly these basic goods are, just as monists differ in their descriptions of the
one unified good; however, there tends to be significant overlap between the lists pro-
duced by different authors.
A note is required here regarding the relationship between the new natural law
account of the basic forms of good and the view found in Aquinas. For Aquinas, there
is a basic unity of the good. This basic unity is found in God.15 However, human par-
ticipation in this unified good takes a number of distinctive forms.16 Aquinas’s

14 For a useful survey and critical discussion of the various monist positions, see Shelly Kagan, Norma-
tive Ethics (Westview, 1998) 29–41.
15 See eg Thomas Aquinas, Summa Theologiae, I–II, q 109, art 3 (hereinafter ST ). I am grateful to an
anonymous referee for helpful comments on this issue.
16 ST, I–II, q 94, art 2.
 Natural Law Beyond Finnis 299

doctrine of the unity of the good is therefore quite different to the monist perspective
described above. The new natural law account of the basic goods emphasises the plu-
ralistic dimension of Aquinas’s theory.
There is broad agreement among contemporary natural law authors that the fol-
lowing values belong on the list of basic goods: life, knowledge, friendship,
recreation, spirituality, aesthetic experience and practical reasonableness.17 Other
basic goods defended by some authors, but challenged or rejected by others, include
pleasure,18 physical and mental well-being,19 creativity,20 inner peace,21 self-inte-
gration,22 family23 and excellence in work and play.24
At this point, one may be tempted to ask the following type of question: where
do the basic goods come from? What is their meta-ethical status? Natural law theo-
rists have typically claimed that the goods reflect basic inclinations grounded in
human nature.25 However, as with the other topics discussed above, there is con-
siderable debate as to the details of this picture; for example, views differ as to
whether it should be understood in a naturalistic or non-naturalistic light.26
There is an interesting debate among natural law authors as to whether the basic
goods may change over time. This issue is, to some extent, tied to questions con-
cerning human nature: does human nature evolve over time and, if so, do the basic
forms of good change with it? Chappell, for example, advances what he calls the
dynamic thesis about the basic goods, according to which the list of goods may
expand as humans develop as a species.27 It is doubtful whether the new natural law
theorists would endorse this position.
The natural law claim that there is a plurality of basic, incommensurable goods
entails the rejection of the consequentialist theory of practical rationality. The con-
sequentialist account makes working out what we ought to do seem like a matter of
calculation: once we have reduced all the consequences of each possible action down
to a single metric—pleasure, preference satisfaction or what have you—we can
compare them and see which is best. However, natural law ethics denies that it is pos-
sible to evaluate all our possible actions in terms of one overarching metric. Different
actions may promote different basic forms of good; in many cases, there is no

17 Finnis (n 1) chs 3–4; Murphy (n 7) ch 3; Chappell (n 7) 37–45; Chartier (n 7) 7–13; Gomez-Lobo

(n 7) ch 2; Grisez (n 4) 121–5. I have my doubts about some of the inclusions on this list, but I can-
not pursue the topic in detail here.
18 Support for the basic good of pleasure can be found in Chappell (n 7) 38; Chartier (n 7) 10 fn 26.
For a contrary view, see Murphy (n 7) 96–100.
19 Chappell (n 7) 39. Other theorists treat physical and mental well-being as an aspect of the good of
life. See eg Finnis (n 1) 86–87; Murphy (n 7) 101–5.
20 Chartier (n 7) 7.
21 Murphy (n 7) 118–26; Chartier (n 7) 7.
22 Grisez (n 4) 123–4; Christopher Tollefsen, ‘Lying: The Integrity Approach’ (2007) 52 American Jour-
nal of Jurisprudence 273. For a contrary view, see Gary Chartier, ‘Self-Integration as a Basic Good’ (2007)
52 American Journal of Jurisprudence 293.
23 Gomez-Lobo (n 7) 13–14.
24 Murphy (n 7) 111–14.
25 Compare ST, I–II, q 94, art 2.
26 For a useful discussion, see John I Jenkins, ‘Good and the Object of Natural Inclination in St
Thomas Aquinas’ (1993) 3 Medieval Philosophy and Theology 62.
27 Chappell (n 7) 44–45.
300 Jurisprudence

objective way of weighing them up to decide which is best. Comparing basic goods
is not like comparing two fractions, which can be reduced to a common denomi-
nator; rather, it is like comparing one object’s weight with another’s length.
On the natural law view, it makes no sense to call upon an agent to maximise the
total good produced by her actions. The notion of maximising makes goods look like
things that can be numerically quantified and calibrated against one another. How-
ever, it is hard enough to quantify pleasure or preference satisfaction, without also
trying to factor in friendship, play, beauty and the other basic goods commonly cited
by natural law theorists. Furthermore, even if it were possible to understand what it
would mean to maximise something like friendship, maximising one basic good
would almost always mean neglecting to maximise the others. It follows that the
notion of maximising provides no real practical guidance, given a plurality of basic
goods. The maximiser would be bound to lead an irrationally unbalanced life, arbi-
trarily neglecting some goods for the sake of others.
Natural law theorists therefore view maximising as an improper and, indeed,
senseless attitude to apply to the basic goods. What, then, is the natural law account
of the right? Given the plurality of intrinsic goods, how should we decide how to act?
The characteristic natural law answer is that acting well consists in having one of two
fitting relationships to the basic goods. The first of these relationships is that of par-
ticipation; the second is that of respect.
An agent participates in the basic goods when she makes one or more of them
the object of her actions. An agent respects the goods when she refrains from act-
ing in a way that is inconsistent with their value.28 It is not necessary that an agent
participates in all the goods equally at all times—there is a range of reasonable forms
and intensities of engagement open to her—but she must always refrain from treat-
ing them as though they lack intrinsic worth. Participating in the goods is permissible
and often praiseworthy, but respecting them is a matter of duty.
The notions of participation in and respect for the basic goods call for further
specification. Natural law theorists have typically done this by offering an account
of the underlying principles that govern engagement with the goods; this is often
called an account of ‘practical reasonableness’ or ‘excellence in agency’.29 Practical
reasonableness, to use the former term, is itself a basic good: it is worthwhile in itself
to seek to act reasonably and well.
We have seen that natural law theorists differ on their lists of the basic goods; they
also diverge on their understandings of practical reasonableness. A key point of
agreement, though, is that there is more than one such principle to be taken into
account. Natural law accounts frequently rely on principles such as the golden
rule;30 the prohibition on intentionally causing harm;31 the requirement of efficiency

28 For discussion of the relationship between these notions, see Timothy Chappell, ‘The Polymorphy
of Practical Reason’ in David S Oderberg and Timothy Chappell (eds), Human Values: New Essays on
Ethics and Natural Law (Palgrave, 2005) ch 5.
29 Finnis (n 1) ch 5; Murphy (n 7) 114–18.
30 Finnis (n 1) 106–9; Gómez-Lobo (n 7) 44–45; Murphy (n 7) 201–4; Chartier (n 7) 15–18.
31 Finnis (n 1) 118–25; Murphy (n 7) 204–7; Chartier (n 7) 18–20. See also Jonathan Crowe, ‘Does Con-
trol Make a Difference? The Moral Foundations of Shareholder Liability for Corporate Wrongs’
(2012) 75 Modern Law Review (forthcoming).
 Natural Law Beyond Finnis 301

within reason;32 and the doctrine of double effect.33 However, there are wide dif-
ferences in how these are understood and applied.
These divergences explain why the core claims of the new natural law ethics do
not entail a particular view on, say, abortion or same-sex marriage, any more than
consequentialism or deontology entail particular views on those issues. Natural law
theory, like the latter two traditions, is best understood as a school of moral theory,
the details of which must be worked out before being applied to specific ethical
issues. The term captures a broad family of ethical views that share an underlying
account of practical rationality.

Politics and the Common Good

The theory of practical rationality outlined above is the foundation of the new nat-
ural law outlook. However, the new natural law tradition also offers distinctive
accounts of politics and jurisprudence. At the core of natural law political theory is
the notion of the common good. This idea plays a crucial role in new natural law
accounts of community, political obligation, individual rights and, as we will see in
the next section, the concept of law.
The common good refers to a state of affairs where all agents (or, on some
accounts, all members of a given community) are able to participate in the basic
goods in a range of reasonable ways. This state of affairs is multiply realisable: there
are likely to be many potential forms of community that fulfil this condition. It is
nonetheless possible to evaluate different community structures based on the extent
to which they give effect to this ideal.
In order to understand the different ways in which natural law theorists have con-
ceptualised the common good, it is useful to distinguish two types of reasons a person
might have to respect the basic goods. First, a person might have reason to respect
the basic goods only insofar as they are goods for her: this is often called an agent-
relative reason. Alternatively, a person might have reason to respect the goods just
because they are goods, regardless of who stands to benefit from them: this is often
called an agent-neutral reason.
Some natural law theorists claim that the reasons we have to respect the basic
goods are all agent-relative;34 others say the reasons in question are fundamentally
agent-neutral;35 still others claim that we have reasons of both kinds.36 The issue of
whether agents have agent-neutral reasons to respect the basic goods holds impor-
tant implications for the common good.
Let us suppose that we have agent-neutral reasons to respect the basic goods. It
follows that each agent has reason not only to bring about a state of affairs where she

32 Finnis (n 1) 111–18; Murphy (n 7) 207–8; Chartier (n 7) 20–21; Crowe (n 31).

33 Finnis (n 5) 91–92; Gómez-Lobo (n 7) 54–56; Oderberg (n 7) 88–126; Crowe (n 31); Joseph M Boyle,
‘Toward Understanding the Principle of Double Effect’ (1980) 90 Ethics 527.
34 Chappell (n 28) 115–17; Henry Veatch and Joseph Rautenberg, ‘Does the Grisez-Finnis-Boyle Moral
Philosophy Rest on a Mistake?’ (1991) 44 Review of Metaphysics 807.
35 This view is characteristic of the new natural law theorists. See Finnis (n 1) 106–7; Tollefsen (n 4);
Gómez-Lobo (n 7) ch 4.
36 Murphy (n 7) 174–82.
302 Jurisprudence

can participate fully in the basic goods, but also to ensure that others can participate
fully in the goods. On this view, a person living in a community where n members
can participate in the goods will always have reason to seek an arrangement where
(n + 1) members can do so. It follows that each agent has reason to do her share to
bring about the common good.
Suppose, on the other hand, that we only have agent-relative reasons to respect
the goods. On this view, what matters is that we pursue and respect the goods in our
own lives; the way they figure in other people’s lives is up to them. If this is so, how-
ever, why should I care about the common good? Why should it matter to me
whether other people are able to participate in the goods? Why not simply focus on
honouring the goods myself?
The most common response to this problem relies upon the basic value of friend-
ship.37 Friendship is important for a fulfilling and meaningful life, but true friendship
is never wholly self-interested. It involves placing my friends’ interests alongside and
sometimes above my own. Furthermore, the basic good of friendship does not just
involve looking out for my close friends; it also involves extending my cooperation
to others in the community. The common good represents the most complete
expression of this ideal.
The discussion of the common good in the preceding paragraphs raises a num-
ber of further questions. Is the common good itself an intrinsic good? What
conditions are necessary to realise it? Is a community arrangement that provides a
greater range of reasonable ways to participate in the basic goods always preferable,
ceteris paribus, to a more restrictive model? What is the relationship between the two
routes to the concept outlined above?
The views of the common good outlined above also reveal the basis for the new
natural law conception of rights. A right is a normatively protected interest: it is an
interest accompanied by a legitimate expectation that the interest will be realised.
Each person has an interest in others respecting the basic goods as they figure in her
life. On either of the above theories of the common good, she also has a legitimate
expectation that this interest will be realised. On the agent-neutral view of the com-
mon good, each agent has a duty to respect the basic goods both in her own life and
in the lives of others. On the agent-relative view, respecting the good of friendship
entails recognising the interest of others in living a fulfilling life. On either view, each
person has a duty to respect other people’s participation in the goods; the correla-
tive is a right on the part of others that their participation in the goods be respected.
This basic analysis of rights can be expanded to take account of the common
good itself. Each agent has reason to do her share to bring about the common good.
The reason in question can be expressed as a duty; its logical correlative is a right.
It follows that each person has not only a duty to do her own share to realise the com-
mon good, but also a right that others do their share towards the same end. The new
natural law theory therefore provides a rich explanatory framework for making sense
of rights talk as it figures in legal and political discourse.38 Some rights arise from

37 Compare Chappell (n 7) 45–49; Veatch and Rautenberg (n 34) 820–1.

38 Compare Jonathan Crowe, ‘Explaining Natural Rights: Ontological Freedom and the Foundations
of Political Discourse’ (2009) 4 New York University Journal of Law and Liberty 70.
 Natural Law Beyond Finnis 303

the duty to respect other people’s participation in the basic goods; other rights reflect
the duty to do one’s share to create a community in which everyone can participate
in the goods in a variety of ways.
This framework leaves significant room for debate as to the content and extent
of the rights in question. The fundamental notion of a duty to do one’s share for the
common good, for example, raises the question of what exactly counts as each per-
son’s share. This is a difficult and contested issue with profound implications for
natural law views of distributive justice.39
The new natural law account of rights has been criticised by some commentators
as too much of a departure from classical natural law authors, such as Aquinas. Ernest
Fortin, in his famous review of Finnis’s Natural Law and Natural Rights, criticises the
new natural law framework for overemphasising the rights and benefits individuals
derive from the common good, as opposed to the duties it confers on them and the
connection it implies between virtue and human flourishing.40 In this respect, as in
its treatment of the basic goods, the new natural law framework arguably places
greater weight on the pluralistic elements of Aquinas’s theory than his overarching
doctrine of the unity of value.
A related issue concerns the proper role of the state in facilitating the common
good. The new natural law theorists adopt an essentially state-centred conception of
the common good. Finnis, for example, has emphasised the place of limited gov-
ernment in the natural law outlook,41 but he also highlights what he sees as the
necessary role of social authority in ensuring that the common good is realised.42 The
authority of law, for Finnis, plays an inescapable role in coordinating individual
efforts to serve the common good.
However, there is nothing in the notion of the common good itself that neces-
sarily requires a centralised source of political authority. Other social bonds, such
as family, friendship and workplace relationships, arguably play a more central role.
This idea has recently been taken up in the work of Chartier, who defends a natu-
ral law anarchism that sees the common good as best realised through voluntary
social relationships.43 This line of thought poses an important challenge to the sta-
tist bias of the new natural law authors.

Natural Law Jurisprudence

We have seen how the new natural law political theory builds on natural law ethics
by introducing the notion of the common good. The common good also plays an
integral role in natural law jurisprudence. The most widely discussed aspect of nat-
ural law jurisprudence concerns its characterisation of the notion of law. However,
it will be useful to begin by mentioning another distinctive feature of the new nat-

39 For further discussion, see Finnis (n 1) 165–77; Chartier (n 7) passim.

40 Ernest L Fortin, ‘The New Rights Theory and the Natural Law’ (1982) 44 Review of Politics 590, 594–
605. I am grateful to an anonymous referee for helpful comments on this issue.
41 John Finnis, ‘Is Natural Law Theory Compatible with Limited Government?’ in George (n 11) ch 1.
42 Finnis (n 1) ch 9.
43 Chartier (n 7); Gary Chartier, ‘In Defence of the Anarchist’ (2009) 29 Oxford Journal of Legal Studies
115.
304 Jurisprudence

ural law view: its account of legal obligation.

Natural law theory understands the obligation to follow the law as a form of moral
obligation. Philosophers have long doubted whether humans have a generic moral
obligation to comply with the positive law of their communities.44 The new natural
law account of this topic does not necessarily seek to establish such a generic obli-
gation, but it does claim to show how at least some positive laws can be binding upon
those to whom they are directed.
The new natural law account of legal obligation takes its cue from Aquinas’s treat-
ment of this issue in the Summa Theologiae. Aquinas argues that positive law may
reflect the demands of practical rationality in two distinct ways.45 Some positive laws
effectively reproduce the requirements of practical rationality; they therefore have
the same force as the requirements themselves. Other positive laws are specifications
of practical rationality: they stipulate details of social life that natural law leaves inde-
terminate.
There is no real puzzle, for natural law theorists, as to why we should comply with
positive laws of the first sort. We have an obligation to follow laws prohibiting mur-
der, because murder is itself a violation of practical reasonableness. However, it is
harder to explain why we should follow laws of the second kind. Why should indi-
viduals simply accept the way positive laws implement the natural law? Why not fill
in the details on their own?
Natural law theorists have traditionally responded to this challenge by appealing
to the role of law in facilitating social coordination.46 There are at least some areas
of social life where practical rationality does not stipulate a particular form of con-
duct, but things will go badly unless a shared rule is adopted. Road use is a classic
case. Practical rationality does not tell us whether to drive on the right- or left-hand
side of the road, but unless one rule is adopted across the community, many people’s
interests will be thwarted.
There is significant debate as to whether this line of argument has the resources
to support a wide-ranging theory of the obligation to follow the positive law.47
There is no scope in this article for a full discussion of this issue. As we will see later,
however, whether natural law theorists can offer a tenable account of legal obliga-
tion holds significant implications for the plausibility of their theory of law. The latter
issue is typically framed as a debate between natural law jurisprudence and the oppos-
ing school of legal positivism.
The core claim of natural law jurisprudence is what I will call the dependence the-
sis: the existence and content of law necessarily depends on its moral status. Legal
positivists, on the other hand, affirm what is often called the sources thesis: the only

44 See MBE Smith, ‘Is there a Prima Facie Obligation to Obey the Law?’ (1973) 82 Yale Law Journal 950;
A John Simmons, Moral Principles and Political Obligations (Princeton University Press, 1979); Joseph
Raz, The Authority of Law (Oxford University Press, 1979) ch 12; Leslie Green, The Authority of the State
(Oxford University Press, 1988).
45 ST, I–II, q 95, art 2.
46 Finnis (n 1) ch 9; Murphy (n 8) chs 4–5.
47 Gerald Postema, ‘Coordination and Convention at the Foundations of Law’ (1982) 11 Journal of Legal
Studies 165; Leslie Green, ‘Law, Co-ordination and the Common Good’ (1983) 3 Oxford Journal of Legal
Studies 299; John Finnis, ‘Law as Co-ordination’ (1989) 2 Ratio Juris 97.
 Natural Law Beyond Finnis 305

necessary factor in determining whether something is a law is its sources.48 On this

view, whether a norm or normative system is legally valid depends on certain socially
recognised facts and events, such as whether it has been posited in an appropriate
form by a recognised legal authority.
Natural law theorists do not deny that sources play a necessary role in legal valid-
ity. Rather, they supplement the role of sources by positing an additional moral test.
For natural law theorists, in other words, there is a two-pronged standard for legal
validity: in order to assess whether something is a law, we must ask both whether it
was posited in an appropriate form by a recognised authority and whether there is
sufficient moral reason to comply with it. Legal positivists, by contrast, hold that only
the first limb is required.
Proponents of natural law jurisprudence all endorse some variety of the depend-
ence thesis. However, they differ on the exact content of the thesis and the most
promising routes to defending it. Something that goes unremarked in many dis-
cussions of natural law is that the dependence thesis comes in several different
versions. The thesis essentially claims that a moral defect in a norm or system of norms nec-
essarily renders it invalid or defective as law. However, this claim is ambiguous in at least
four different ways.
The first ambiguity concerns whether the thesis is to be understood as a claim
about the concept of law, the nature of law or the linguistic meaning of the term
‘law’. In other words, natural law jurisprudence can be viewed as an exercise in con-
ceptual analysis, an attempt to provide a metaphysical account of law-like phenomena
or a theory about the linguistic reference of ‘law’ and related terms.49 Various com-
binations of these accounts are possible. For example, a metaphysical description of
law-like phenomena might give rise to a theory of the meaning of ‘law’ if aligned with
something like the Kripke-Putnam theory of reference.50 However, there is no nec-
essary connection between the positions.
The second ambiguity in the dependence thesis concerns what counts as a
moral defect. On one possible account of this notion, a putative legal norm is
morally defective only if it requires a person to perform an action that she is morally
obliged not to perform; that is, if the action is morally prohibited.51 On another pos-
sible view, such a norm is morally defective if it requires a person to perform an
action that she is not morally obliged to perform; that is, if the action is not morally
required.52 This construction yields a more robust version of the thesis.

48 See HLA Hart, The Concept of Law (Clarendon, 2nd edn 1994) 269. For further discussion, see
Jonathan Crowe, Legal Theory (Thomson Reuters, 2009) ch 3.
49 For an example of the conceptual approach, see Finnis (n 1) ch 1. For Finnis’s views on the linguis-
tic meaning of ‘law’, see Finnis (n 1) 6, 9–10, 26–27, 233–7, 363–6. For the metaphysical approach,
see Moore, ‘Law as a Functional Kind’ (n 8).
50 For an example of this combination of views, see Moore, ‘Law as a Functional Kind’ (n 8) 204–6. On
the Putnam-Kripke theory of reference, see Hilary Putnam, ‘The Meaning of “Meaning”’ (1975) 7
Minnesota Studies in the Philosophy of Science 131; Saul Kripke, Naming and Necessity (Harvard Univer-
sity Press, 1980).
51 Alexy, for example, treats a norm as morally defective only if it crosses a certain ‘threshold of injus-
tice’. See Alexy (n 8) 28.
52 This is the construction endorsed by Finnis, Moore and Murphy. See Finnis (n 1) 276–7; Moore, ‘Law
as a Functional Kind’ (n 8) 197; Murphy (n 8) 8.
306 Jurisprudence

A third issue concerns what it means for a norm or normative system to be invalid
or defective as law. On one possible view, a moral defect in a norm renders it legally
invalid, such that it is not properly described as a law at all. On another possible
account, a moral defect in a norm renders it merely legally defective, such that it is
law in a weak or qualified sense of the term. Finnis draws this kind of distinction in
Natural Law and Natural Rights, suggesting that the latter construction is necessary
to save natural law from the criticisms of legal positivists.53 More recently, the dis-
tinction has been noted by Murphy, who uses it to differentiate strong and weak
versions of the natural law claim.54
The reference to a norm or system of norms reveals a fourth ambiguity. The depend-
ence thesis can be understood as a claim about the impact of moral defects on the
legal status of individual norms or as a claim about the effect of moral defects on the
legal status of an overall normative system.55 This latter version of the claim then has
further variations, depending on what proportion (some, many, all) of the individ-
ual norms that comprise a system must be morally defective in order for the system
as a whole to lose its legal status.
Contemporary natural law theorists have offered a variety of arguments for
their preferred versions of the dependence thesis. The most prominent arguments
can be placed into three categories. Some theorists have argued that law is a func-
tional concept: its distinctive function is to direct human action, so anything that fails
in that function is defective as law. The views of Moore and Fuller fall into this cat-
egory;56 Murphy also advances a version of this approach.57 A second group of
theorists views law as a hermeneutic concept: its role is to explain and justify normative
social practices, which it can only do if it holds moral force. This is the view set out
by Finnis in the opening chapter of Natural Law and Natural Rights.58 It is also the
type of strategy adopted by Ronald Dworkin, although whether Dworkin endorses
the dependence thesis is open to question, as he makes the existence and content
of law depend not so much on its moral status as on its coherence with social
norms.59 Finally, a third set of authors, including Alexy and Murphy, has argued that
legal norms are a form of speech act, which is defective unless agents have reason to
comply with it.60
What, then, is the relationship between the natural law account of law and the
theory of legal obligation mentioned earlier? Let us suppose that, as many philoso-
53 Finnis (n 1) 363–6. See also Joseph Raz, Practical Reason and Norms (Oxford University Press, 1990)
164.
54 Murphy (n 8) ch 1. See also Moore, ‘Law as a Functional Kind’ (n 8) 198; Alexy (n 8) 26. Murphy,
like Finnis, ultimately endorses the weak view on this issue, while Moore adopts the strong view. Alexy
proposes a combination of the two positions.
55 Alexy, for example, proposes different versions of the dependence thesis for individual norms and
normative systems. See Alexy (n 8) 36.
56 Moore, ‘Law as a Functional Kind’ (n 8); Fuller (n 10).
57 Murphy (n 8) 29–36.
58 Finnis (n 1) ch 1. For further discussion see Jonathan Crowe, ‘Natural Law in Jurisprudence and Pol-
itics’ (2007) 27 Oxford Journal of Legal Studies 775, 782–5.
59 See eg Ronald Dworkin, Law’s Empire (Harvard University Press, 1986). For further discussion of
Dworkin’s relationship to natural law theory, see Jonathan Crowe, ‘Dworkin on the Value of Integrity’
(2007) 12 Deakin Law Review 167.
60 See eg Alexy (n 8); Murphy (n 8) 37–56.
 Natural Law Beyond Finnis 307

phers have argued, there is no generic obligation to follow the positive law. This
means that if there is a necessary moral test for legal validity, as the dependence the-
sis entails, then at least some positive laws are likely to fail it. This result has seemed
to some authors to be a decisive objection to the natural law position.61 However, the
objection presumes the failure of the natural law account of legal obligation. It also
raises some complex issues regarding the extent to which a tenable theory of law may
diverge from popular views of the concept.62
The natural law theory of law seems most plausible if it can show why at least some
positive laws hold sufficient moral significance to fall within the core of the notion.
This basic burden is relatively easy to discharge: laws prohibiting murder and rape,
for example, clearly carry serious moral weight. The more everyday examples of law
that fall into this category, the more compelling the dependence thesis seems. It is
for this reason that an account of legal obligation is central to natural law jurispru-
dence. It is not a necessary precondition for the dependence thesis that there is a
widespread obligation to comply with positive laws, but it helps make the implica-
tions of the thesis more appealing.

III. NATURAL LAW BEYOND FINNIS

The new natural law outlook consists of an ethical theory that combines the plurality
of the basic forms of good with the logical priority of the good over the right; a polit-
ical theory that holds that all agents have reason to pursue the common good; and
a legal theory that combines a normative account of law as social coordination with
a conceptual theory of law as carrying serious normative weight. The views of the new
natural law theorists represent one way in which these components might be fleshed
out, but it is far from the only version available.
Contemporary natural law authors have diverged from the new natural law the-
orists in myriad ways, while continuing to defend the core claims of the new natural
law outlook. These debates cover topics as fundamental as the nature, content and
implications of the various basic goods and principles of practical reasonableness;
the nature, force and implications of the common good; and the content of and most
promising route to the dependence thesis.
It is instructive to compare the current state of natural law theory with that of
legal positivism. Hart is generally acknowledged as the founder of contemporary legal
positivism; however, his work, while still highly influential, is no longer at the cutting
edge of the field. Current debates within legal positivism contain a diverse range of
descriptive and normative positions, reflected in the work of authors such as Tom
Campbell, Jules Coleman, John Gardner, Matthew Kramer, Neil MacCormick, Joseph
Raz, Scott Shapiro and Wil Waluchow.63

61 See eg Raz (n 53) 164.

62 For a helpful discussion, see Murphy (n 8) ch 1.
63 Tom Campbell, The Legal Theory of Ethical Positivism (Dartmouth, 1996); Jules Coleman, The Practice
of Principle (Oxford University Press, 2001); John Gardner, ‘Legal Positivism: 5½ Myths’ (2001) 46 Amer-
ican Journal of Jurisprudence 199 and ‘Nearly Natural Law’ (2007) 52 American Journal of Jurisprudence
308 Jurisprudence

These authors all endorse the social thesis, as discussed in the previous section.
However, they differ on how the thesis is best understood and what its implications
are for legal theory. The debate between inclusive and exclusive legal positivists is
perhaps the best known of these disputes, but there are many others as well.64 These
internal debates have not detracted from the popularity of the legal positivist frame-
work; indeed, legal positivism has become firmly entrenched as the dominant
theory of the concept of law.
Finnis’s position within contemporary natural law theory is similar to Hart’s
within legal positivism. Finnis is properly viewed as the founder of contemporary nat-
ural law jurisprudence, as well as one of the leading proponents of the new natural
law ethics. However, although his work continues to exert a strong influence on cur-
rent debates, it is no longer at the cutting edge. Rather, scholarly attention is
increasingly turning to the ethical views of authors such as Chappell, Chartier, Mur-
phy and Oderberg and the jurisprudential arguments advanced by Alexy, Greenberg,
Moore, Murphy and Simmonds.
In the same way that legal positivism entered its post-Hartian phase, we are enter-
ing the era of natural law beyond Finnis. This is not because the new natural law
framework has been found fundamentally wanting, but rather because the version
developed by Finnis and Grisez is only one possible way of fleshing out its core claims.
Distinguishing the core elements of the new natural law outlook from the various
positions on offer not only facilitates clarity, but also promises to pave the way for
continuing and increasing diversity within natural law scholarship. This can only aid
natural law efforts to challenge the dominance of legal positivism within contem-
porary legal theory.

1; Matthew Kramer, In Defense of Legal Positivism (Oxford University Press, 1999); Neil MacCormick,
Institutions of Law: An Essay in Legal Theory (Oxford University Press, 2007); Raz (n 53); Scott Shapiro,
Legality (Harvard University Press, 2011); Wil Waluchow, Inclusive Legal Positivism (Oxford University
Press, 1994).
64 For an overview see Jules Coleman and Brian Leiter, ‘Legal Positivism’ in Dennis Patterson (ed),
A Companion to Philosophy of Law and Legal Theory (Blackwell, 1999) ch 15.