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Finnis on Liberty

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 FINNIS ON LIBERTY

Nicholas Aroney* and Bradley Miller**

Chapter published in Gabriel Moens and Suri Ratnapala (eds.), The Jurisprudence of
Liberty (Sydney: LexisNexis, 2010)

I. Introduction
‗Liberty‘ may well be an essentially contestable concept. 1 We generally recognise that
people can mean different things by the word ‗liberty‘ or its near-synonym, ‗freedom‘,
but about those diverse meanings it seems we are not able to agree whether dogmatism
about a particular meaning, scepticism about the possibility of any meaning or
eclecticism about all proposed meanings is the proper view to take of the matter.2
Different conceptions of liberty are often deployed in argument; and contests over the
proper use of the term appear ‗inevitable‘ and ‗endless‘.3 Indeed, the contest seems to be
not only over particular conceptions, or about issues at the periphery of the concept, but
about the very core of the idea itself.4 Yet despite the interminable debate, the
contestants still consider the idea of liberty to be something worth arguing about, and to
believe this presupposes at least some measure of agreement about the concept as the
object of discussion.5

*
Professor of Constitutional Law, Centre for Public, International and Comparative Law, TC
Beirne School of Law, The University of Queensland.
**
Associate Professor of Law, Faculty of Law, University of Western Ontario. This chapter is
deliberately expositive and analytical. John Finnis‘s scholarship has generated a significant secondary
literature which scrutinises his thought from many different points of view. While we are in substantial
agreement with many of Finnis‘s ideas and arguments, due to space limitations we have refrained from
engaging with the critical literature or presenting our own assessment of his thought. Our thanks are due to
James Allan, Jon Crowe and Richard Ekins who kindly read and commented on earlier drafts of this
chapter. We remain responsible for any of its shortcomings.
1
See John Gray, 'On Liberty, Liberalism and Essential Contestability' (1978) 8(4) British Journal
of Political Science 385.
2
Eugene Garver, 'Rhetoric and Essentially Contested Arguments' (1978) 11(3) Philosophy and
Rhetoric 156 at 168.
3
Christine Swanton, 'On the "Essential Contestedness" of Political Concepts' (1985) 95 Ethics 811
at 813.
4
As Waldron points out, essential contestability goes to the core of the concept, not just
disagreements about its penumbra. See Jeremy Waldron, 'Is the Rule of Law an Essentially Contested
Concept (in Florida)?' (2002) 21(2) Law and Philosophy 137 at 148-149.
5
Gray, 1978, note 1 above, pp 389, 391-2. For an influential account of the core idea of liberty on
which the various views are said to converge, see Gerald MacCallum, 'Negative and Positive Freedom'
(1967) 76 Philosophical Review 312.
 2

To be essentially contested, it is said, a concept must, among other things, be a

value-concept and it must be internally complex.6 Such internally complex ideas are
often called ‗cluster concepts‘, meaning they possesses ‗complex connections with a host
of other concepts to which [they are] related‘, so that the clarification of the concept
requires ‗the elaboration of the broader conceptual system within which it is implicated.‘7
Thus, to unravel the various competing conceptions of ‗liberty‘, it would seem necessary
to explain the wider conceptual systems in which such ideas are situated. The conception
of liberty entertained and proposed by John Finnis is no exception to this rule. On first
glance, liberty as such does not appear to occupy an explicitly central place in Finnis‘s
natural law theory, but on closer inspection it becomes apparent that it has an essential
role in his thought. To demonstrate this, it is necessary to recount much of Finnis‘s
natural law theory (both as a theory of law and as a theory of morality), for the distinctive
character of his understanding of liberty is very much determined by the wider
conceptual system in which it is located.
Coming to grips with Finnis‘s understanding of liberty requires us to distinguish
the different conceptual contexts in which the idea appears. In this chapter we argue that,
while Finnis himself does not put it in these terms, there are four kinds of liberty present
in his thought, which we distinguish as ‗existential‘, ‗moral‘, ‗legal‘ and ‗political‘. By
existential liberty we refer to Finnis‘s claim that human beings characteristically find
themselves with a capacity to make choices about courses of action, and his assertion that
these choices are free of any form of absolute determinism, whether it be psychological,
physiological, social or economic. For Finnis, we argue, existential liberty is a basic
condition of human experience. By moral liberty we refer to Finnis‘s closely related
claim that as free moral agents, we have the liberty, and also the responsibility, to make
practical choices among a plurality of rationally desirable goods. Moral liberty, for
Finnis, is thus grounded in existential liberty, but it involves morally-constrained choices
among goods. While we contend that it is helpful to distinguish between existential and
moral liberty for expositional reasons, Finnis treats the two as inseparable in practical
experience; the idea of ‗free choice‘—which he says is foundational to his entire
theory—involves both the existential liberty to make choices in an anti-deterministic
sense and the moral liberty to make choices among rationally apprehended goods.

6
W B Gallie, 'Essentially Contested Concepts' in W B Gallie (ed), Philosophy and the Historical
Understanding, Chatto & Windus, London, 1964, p 161.
7
William E. Connolly, 'Essentially Contested Concepts' in Samuel A Chambers and Terrell Carver
(eds), Democracy, Pluralism and Political Theory, Routledge, Abingdon, Oxford, 2008.
 3

By legal liberty we mean the freedom to make choices between courses of action
unconstrained by positive law. For Finnis, legal liberty has two distinct aspects, first, the
absence of a countervailing legal duty and, second, the absence of legal power to impose
a contradictory duty. Legal liberty in both these senses is closely related to Finnis‘s
conception of what we here call ‗political‘ liberty, by which we mean freedom from legal
constraint imposed by the coercive force of government. This kind of freedom
encompasses strictly legal liberty (in the dual sense just explained), but it also includes an
aspect of moral liberty generated by Finnis‘s insistence that political authority is properly
constrained, not only by legal or constitutional limitations but even more importantly by
general moral principles and norms which apply to those who exercise the coercive
power of government just as they apply to all human beings. Political liberty is therefore
reducible to a special aspect of moral and legal liberty, but it is worth isolating it as a
fourth aspect of Finnis‘s conception of liberty if only to draw attention to the important
role that limited political authority plays in Finnis‘s thought.
Finnis‘s theory thus involves, at different points, several aspects of liberty, each
closely related to one another within the context of his thought as a whole. Our
exposition of his theory in this chapter will progress through each kind of liberty in turn.
Thinking clearly about liberty requires us not only to distinguish the different
aspects of the concept and the various contexts in which it is used. It is also necessary to
distinguish different constructions of liberty that operate within these contexts. On this
point we shall argue that the existential side of Finnis‘s conception is in the nature of a
‗liberty from‘—it is a liberty to make choices free from any form of absolute
determinism.8 This existential side to Finnis‘s thought acknowledges the liberty of
human subjects to choose to act in ways that are either rational or irrational; the existence
of this aspect of human freedom is radically free from any particular purposes or goals.
Human beings are free, in this sense, to act in accordance with their sub-rational desires
or impulses. For Finnis this kind of freedom is a constituent feature of the human
condition. However, Finnis presents the lived experience of human beings as involving
not only an existential freedom in the sense just described, but as also involving a moral
freedom shaped by our capacity for reasoned judgement about our actions, including,
especially for Finnis, our capacity to apprehend certain things or states of being as
rationally good—as valuable and desirable. For Finnis, such states of being are both

8
We here draw on the seminal distinction between ‗negative‘ and ‗positive‘ liberty expounded in
Isaiah Berlin, 'Two Concepts of Liberty' in Henry Hardy (ed), Liberty: Incorporating 'Four Essays on
Liberty', Oxford University Press, Oxford, 2002. We also draw on the account of freedom as a triadic
relation between (1) what is free (the acting agent), (2) from what the agent is free and (3) for what purpose
the agent is free, advanced in MacCallum, 1967, note 5 above.
 4

rational and desirable, but they are also plural. And here, the second aspect of liberty,
presupposing the first, emerges: the liberty to choose among the vast range of rationally
desirable states of affairs. This second aspect, unlike the first, is in the nature of a
‗freedom to‘, for it is a freedom to choose what is good, albeit involving a choice
between different goods—for the plurality of the basic goods and their
incommensurability, together with the limited capacities of human beings, means that we
unavoidably must make deliberate choices between different actions, projects and life
plans, each action, project and life plan embodying a unique ensemble of basic goods
freely chosen by the individual human being.
As will be seen, Finnis‘s account of legal liberty draws heavily on Wesley
Hohfeld‘s analysis of legal language. Finnis understands legal liberty primarily in the
sense of Hohfeld‘s ‗privilege‘ (which Finnis, like Glanville Williams, more helpfully
calls ‗liberty‘), a legal condition where certain categories of actions are not subject to any
legal duties either to perform those actions or to abstain from performing them. Legal
liberty, in this sense, is again a freedom from, although when an agent exercises legal
liberty in this sense, while free from legal duties, he or she remains subject to moral
duties, and in this sense, legal liberty provides room for an agent to exercise moral liberty
as a freedom to choose among rationally desirable goods, as well as an existential
freedom simply to choose. Moreover, also drawing on Hohfeld, Finnis affirms the idea
of ‗immunity‘, meaning the absence of a legal capacity (by either government or private
persons or institutions) to create a duty to act or refrain from acting in a certain way. As
such, an immunity is a freedom from, in the sense that it is a freedom from power to
impose legal duties of a particular description. However, legal immunity in this sense has
the practical effect of protecting a certain sphere of legal liberty, for legal liberty is the
absence of any such duties imposed by those who might otherwise have had the power to
impose them. As will be seen, the scope of legal liberties and immunities for Finnis very
substantially turns on his account of the nature and purposes of government. Because the
legitimate purposes of government are limited, Finnis endorses a not insignificant scope
for legal liberty, properly shaped however, by the constraints of moral liberty to choose
among rationally desirable goods.

II. Moral agency and rational life plans

At the core of the natural law theory advanced by Finnis is the proposition that there are
basic human goods that provide persons with reasons for action. All rationally motivated
action can be understood as an attempt to pursue one or more of these basic goods in
 5

some way.9 These goods are objective in the sense that their rational appeal is not the
product of (and does not vary with) individual appetites, inclinations, or desires.
Knowledge, for example, is not a good simply because a person happens to desire it (and
does not cease to be a good if someone does not see the point of it). Rather, because
knowledge is a basic human good, pursuit of knowledge is therefore choice-worthy and
persons accordingly have reason to choose and act towards the end of acquiring
knowledge.10
But comprehending a basic good like knowledge is not the same thing as
generating a plan of action. There are several basic goods, Finnis insists, and the
multiplicity of the basic goods—together with the virtually infinite variety of ways of
participating in them—means that we must engage in a world of incompatible options.
This means that choices need to be made. Indeed, while remaining largely in the
background in Natural Law and Natural Rights,11 the existential reality of free choice is
foundational to the moral theory that Finnis articulates. He and his collaborators,
German Grisez and Joseph Boyle, identify free choice as an essential presupposition of
the ‗philosophical anthropology‘ that underlies their moral theory.12 Finnis
unequivocally rejects all forms of determinism and exaggerated rationalism that deny the

9
In Natural Law and Natural Rights, Oxford University Press, Oxford, 1980, chs 3 and 4, Finnis
itemized these basic human goods as life, knowledge, play, aesthetic experience, friendship, practical
reason, and religion. Never intending this to stand as an exclusive or definitive statement, Finnis and his
collaborators, Germain Grisez and Joseph Boyle, later reframed the list to involve life, knowledge and
aesthetic experience, excellence in work and play, interpersonal harmony, inner peace, peace of conscience,
and harmony with some super-human source of meaning and value. See Germain Grisez, Joseph Boyle
and John Finnis, 'Practical Principles, Moral Truth, and Ultimate Ends' (1987) 32 American Journal of
Jurisprudence 99 at 106-108.
10
See the argument in Finnis, 1980, note 9 above, pp 69-73.
11
In Natural Law and Natural Rights Finnis is content to sketch an outline of moral reasoning that
he expressly acknowledges is dependent on the possibility of free choice, to attack the moral scepticism of
Hume and others, and then to rely on the explicit defence of free choice mounted by Joseph M Boyle, Jr.,
Germain Grisez and Olaf Tollefsen, Free Choice: A Self-Referential Argument, University of Notre Dame
Press, Notre Dame, IN, 1976. See Finnis, 1980, note 9 above, pp 100, 127 (note). Meditation on the
meaning of free choice came in later work.
12
Grisez, Boyle and Finnis, 1987, note 9 above, pp 100-102 (section entitled ‗Framework for the
Analysis: Free Choice‘). Finnis finds this principle in Thomas Aquinas. See John Finnis, Aquinas: Moral,
Political, and Legal Theory, Oxford University Press, Oxford, 1998, p 20. See also Robert P George, ‗Free
Choice, Practical Reason and Fitness for the Rule of Law‘ in Robert P George, In Defense of Natural Law,
Clarendon Press, Oxford, 1999, p 117.
 6

possibility of free choice, for it is our capacity for choice that constitutes us as free and
responsible.13
Free choice and self-determination is ‗something far more than absence of
external constraint or compulsion.‘14 To say that a choice is free is to indicate that there
is something creative about the choice; the choice originates with the chooser. That is,
the choice is not dictated by something external (like a constraint imposed by someone )
or something internal (such as a subrational craving). Free choice is also creative in the
sense that it is self-constituting: one‘s morally significant choices have the lasting effect
of shaping one‘s disposition or character.15
According to Finnis, ‗[a] choice is free if and only if it is between open practical
alternatives (i.e. to do this, or to do that …) such that there is no factor but the choosing
itself which settles which alternative is chosen.‘16 Where a person is faced with multiple
attractive options, such that no option seems unqualifiedly better than any other, reason
will not dictate one choice over the other and the choice is in that sense free. It is the act
of choosing and not any internal or external compulsion that settles the decision. For
example, if I am looking to buy a house and have identified two houses that seem equally
to meet my criteria (eg same number of bedrooms, in roughly the same state of repair,
and located equivalently close to my place of work), any decision that I reach will be
underdetermined by reason. I will have good reason to buy a house, and both options that
I have identified would be reasonable choices, but the ultimate selection cannot be settled
by reason. Where there are reasons for and against buying house A and reasons for and
against buying house B, and no decisive reason to prefer one over the other (ie, the
competing reasons are incommensurable), any choice that I make between the two houses
will be, in a strong sense, a free choice.
Other decisions where reason dictates one unique answer are not choices at all in
the moral sense focussed upon by Finnis. In situations where one is confronted by two
options, one of which provides all of the benefit of the other, plus some additional
benefit, there is really only one rationally appealing option and no genuine choice (‗a
remedy that both relieves pain and heals is to be preferred to the one that merely relieves

13
Finnis, 1980, note 9 above, p 100.
14
John Finnis, Fundamentals of Ethics, Georgetown University Press, Washington DC, 1983, p
138.
15
Finnis, 1983, note 14 above, pp 139-140; John Finnis, ‗―The Thing I Am‖ – Personal Identity in
Aquinas and Shakespeare‘ (2005) 22 Social Philosophy and Policy 250.
16
Finnis, 1983, p 137.
 7

pain.‘)17 If house A has all of the advantages of house B, but none of its disadvantages
(say, an abundance of asbestos insulation that will be health threatening and costly to
remove) then there is a reason to prefer house A. I am still making a choice, and it is still
a free choice (in the sense that it is not compelled by some external force or by my own
subrational desires), but there is something less creative in the choice. I could still
choose to purchase the house notwithstanding the asbestos, but such a choice would be a
failure of reason, a mistake. The opportunity for choice exists in the focal sense used by
Finnis where, having taken all information into account, there is nothing unique in any of
the options that will resolve the question for the chooser.18
There are still other situations where a deliberator sees the good to be achieved
through a particular choice and not only understands that there are reasons not to make
the choice (eg the presence of asbestos), but also that the competing reasons defeat the
contrary reasons.19 Such would be the case were I to decide to sell my house (to purchase
a larger one to accommodate my growing family) and to facilitate the sale by lying when
asked by a prospective purchaser about the presence of lead pipes. I have a reason to
lie—to facilitate the sale—but the reason is defeated by a moral norm that I not lie. To
lie in this situation is in a narrow sense rational—it is chosen as a means to achieve some
good for myself and my family—but it is not fully reasonable. Moral norms are norms
that govern and direct the exercise of free choice.20 While choices that are subject to
binding moral norms are not free in the central case of the underdetermined free choice
posited by Finnis, they are free in the sense that the deliberator can choose whether to
respect them or not; moral norms are not causes of anyone‘s action. Where moral norms
are not respected, and their action-guiding function is side-lined, the deliberating agent‘s
decision is justly subject to censure.

17
Finnis, 1980, note 9 above, p 111. Or as Finnis later expressed it, a ‗choice between alternative
options, in the focal sense of "choice" (electio, selection and resolve), is really only necessary when (so far
as the chooser can see) the reasons in favour of one option are not all satisfied, or as well satisfied in all
dimensions of intelligible good, by the other option(s)‘. John Finnis, 'On Hart‘s Ways: Law as Reason and
Fact' in Matthew Kramer et al (eds), The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy,
Oxford University Press, Oxford, 2008, p 10.
18
See also Boyle, Grisez and Tollefsen, 1976, note 11 above, p 17.
19
For a discussion of ‗immoral choices‘, see Grisez, Boyle and Finnis, 1987, note 9 above, pp
123-5.
20
See Robert P George, ‗Recent Criticism of Natural Law Theory‘, (1988) 55 University of
Chicago Law Review, 1371-1429, reprinted in Robert P George, In Defense of Natural Law (Oxford:
Clarendon Press, 1999), p 55.
 8

In order to choose reasonably, Finnis argues that it is necessary for human beings
to subject their inclinations, urges and momentary impulses to intelligent direction.21 For
Finnis, ‗freedom from the automatism of habit and from subjection to unintegrated
impulses and compulsions‘ is essential to human well being.22 One of the essential
aspects of human good is the good of practical reasonableness.23 To be practically
reasonable, Finnis argues, is to follow the directions of several principles, which dictate
that one‘s choices should be part of a coherent life plan, in which each basic good is
properly valued and choices as to which goods are to be especially pursued are not made
as if one basic good is somehow more valuable than another or can legitimately be traded
off against another in some kind of utilitarian calculus. Inevitably, our decisions will
mean that some goods will be pursued at the expense of others. One‘s commitments to
particular roles, purposes and life-goals create constraints on one‘s future decisions.24
Not everything can be done, and personal limitations of time, talent and energy mean that
one‘s decision to pursue the career of a concert pianist, for example, will rule out other
equally encompassing life plans, as well as rejecting all of the day-to-day possibilities
that are inconsistent with the daily work that must be done to establish and maintain
oneself as a concert pianist. But while it is inevitable that one‘s choices will constrain
some opportunities to pursue other goods in other ways,25 one must never choose with the
intention that one‘s actions will directly or immediately damage or harm anyone‘s
participation in any of the basic goods.26 For Finnis, the ‗master principle‘ of morality is
that one ought at all times deliberate and choose in a way that promotes ‗integral human
fulfilment‘, both in oneself and in others, in community with one another.27 Freedom of
conscience, for Finnis, means the freedom to act according to ‗what one judges to be in
the last analysis required by reason‘.28
Finnis thus affirms two kinds of freedom at this point in his theory: the existential
freedom of human beings to choose among an endless variety of possible courses of
action, and the moral freedom to choose in accordance with practical reason. Existential
freedom, in this sense, is not constrained by any determining elements except the limits

21
Finnis, 1980, note 9 above, p 103.
22
Finnis, 1980, p 168.
23
Finnis, 1980, ch 5. See also John Finnis, ‗Foundations of Practical Reason Revisited‘ (2005) 50
American Journal of Jurisprudence 109.
24
Finnis, 1980, p 100.
25
Finnis, 1983, note 14 above, p 139.
26
Finnis, 1980, note 9 above, p 120.
27
Finnis, 2005, note 23 above, p 122.
28
Finnis, 1980, p 126.
 9

of what is humanly possible. But for Finnis, freedom in this existential sense coexists
with human capacity to recognise certain states of being and choices as objectively good
both for oneself and others. This moral freedom is constrained in the fundamental sense
that a fully reasonable (or moral) course of action must pursue some combination of
rationally apprehended instrumental and basic goods, and do so in a manner that observes
the requirements of morality. Existential freedom means that human beings are able to
choose courses of action that are unreasonable. While one can pursue a basic good by
unreasonable means, one cannot act reasonably without ultimately pursuing some basic
good. The plurality of these goods, as well as the plurality of the means to participate in
them, means that there can be no one ideal life plan; individual human agents are free,
entitled, and indeed obligated, on Finnis‘s account, to choose the particular, though
reasonable, courses of action and life-plans that they prefer.

III. Reasonable political authority and the common good of communities

Participation in some basic human goods—most obviously, friendship and many forms of
work and play—requires collaboration with others. But even plans of action that are not
pursued jointly with others often require a degree of coordination with others. My solo
commute to work, for example, is made much easier when everyone has agreed to drive
on the same side of the road, I know what hours the petrol station will be open, the road
crews have ensured the road is clear of obstacles, etc. These and countless other
conditions are necessary for me to attain my individual objectives, and so I am supported
in my goals by the actions of others, even where they have no specific idea of who I am
or what my objectives are. This ‗set of conditions which enables the members of a
community to attain for themselves reasonable objectives, or to realize reasonably for
themselves the value(s), for the sake of which they have reason to collaborate with each
other (positively and/or negatively) in a community‘,29 is what Finnis calls the common
good. It is the ‗shared conception of the point of continuing co-operation.‘30
In expounding the idea of community in this way, Finnis begins with individual
human agents. While some have conceived human communities as metaphysical unities,
Finnis expounds them as relationships between individuals,31 formed for deliberate
purposes related to our capacity as moral agents to choose our actions, our projects and
our life plans.32 Moreover, Finnis (here, as often, following Aristotle) is careful to

29
Finnis, 1980, p 155.
30
Finnis, 1980, p 153.
31
Finnis, 1980, p 135-6.
32
Finnis, 1980, p 137-8.
 10

distinguish three different kinds of relationships: relationships of ‗utility‘ in which each

individual collaborates in some way in order to pursue his or her own ends (as in
commercial dealings), secondly, relationships of ‗play‘ in which each individual
collaborates in order to co-ordinate their activities in order to enjoy the collaboration
itself (as in various sports and games) and, thirdly, relationships of ‗friendship‘ in which
each individual is committed to the relationship not only for his or her own good, but for
the good of the other person as well (as in ‗true‘ friendships, marriages, etc).33 Finnis‘s
analysis of this latter, most intense form of community is significant for the way in which
friendship is nonetheless understood as a specific commitment entered into freely by
individuals, in which they each give of their own selves, their own time and their own
goods.34 As such, friendship not only presupposes a freely-made commitment made by
individual agents as an intrinsic part of their own purposes and life goals, it also
necessarily implies an intensity of relationship that can be given only to a few in the
context of a permanent or near-permanent association. Indeed, there is a gradation of
relationships and communities envisaged here which, following both Aristotle and
Aquinas, extends from the family, through the village, neighbourhood and other
‗intermediate‘ associations finally to the complete political community.35
Platonic or Marxist dreams of a communist sharing of property, of sexual partners
and of children are thus ruled out by Finnis as not only utopian but also as fundamentally
misguided.36 Against a collectivised socialisation of property, Finnis presents an account
of the common good in which it is the purpose of the state to enable individuals, families,
neighbourhoods, towns and other forms of community to flourish. In accordance with
the principle of subsidiarity, the well-being of families and other associations is
constituted by the well-being of the individuals within those families and associations.
As Finnis emphatically puts it, ‗just as the dissolution of family and property would water
down human friendship, so the complete absorption by the family of its members would
radically emaciate their personal freedom and authenticity, which also are basic aspects
of human full-being‘.37 The principle of ‗subsidiarity‘ does not, therefore, imply any
sense of ‗secondariness or subordination‘, but rather one of ‗assistance‘. Larger and
wider communities (including the state) ought to assist smaller communities and
individuals ‗to help themselves‘ and, indeed, to ‗constitute themselves through individual

33
Finnis, 1980, p 139-44.
34
Finnis, 1980, pp 144-5.
35
Finnis, 1980, pp 145-6. See Nicholas Aroney, 'Subsidiarity, Federalism and the Best
Constitution: Thomas Aquinas on City, Province and Empire' (2007) 26 Law and Philosophy 161.
36
Finnis, 1980, p 144.
37
Finnis, 1980, p 146.
 11

initiatives of choosing commitments ... and of realizing these commitments through

personal inventiveness and effort in projects‘.38 Accordingly, larger associations should
not assume functions which can be performed efficiently by smaller associations.39
Respect for the common good thus facilitates individuals in their reasonable
pursuits, but it also requires them to commit to certain restrictions on their liberty for the
benefit of all of those with whom they share community. Of the many different types of
communities (families, neighbourhoods, recreational associations, academic
communities, religious congregations, political societies, etc) each has its own point of
co-operation and own set of goods, either basic and instrumental, that it can provide.40
Thus Finnis argues that different types of community pursue different common goods,
and those different common goods can justify different types of restraint on a person‘s
existential freedom. Although the state, or political community, is comprised of
individuals and families, the common good of the state is different from the goods
specific to individuals and families. Following Aristotle, Finnis affirms that the state is
distinguished from families and other intermediate groups on the ground that the state
alone is self-sufficient or complete, in the sense that it secures the entire ensemble of
material and social conditions needed to enable individuals to flourish or live well.41
Aristotle claimed that such self-sufficiency was secured by political communities on the
scale of the ancient polis or city-state, whereas, as Finnis points out, in our day the claim
to self-sufficiency and completeness is made by the modern territorial state. He also
points out that modern legal systems claim a corresponding authority to regulate ‗all
forms of human behaviour‘, including the ‗supreme authority‘ to regulate the conditions
under which the members of a political community ‗can participate in any other
normative system or association‘. However, he also characterises states as ‗adopting‘ and

38
Finnis, 1980, p 146.
39
Finnis, 1980, p 147. For an insightful explanation of the origin of the subsidiarity concept within
Catholic social doctrine, see Russell Hittinger, 'Social Pluralism and Subsidiarity in Catholic Social
Doctrine' (2002) 16 Annales Theologici 385.
40
Finnis elsewhere distinguishes the basic goods that are pursued in friendship, marriage and
religious association, from the instrumental goods that are pursued, for example, by business associations,
and by the state as a whole. For Finnis, although the state has a general regulative role in relation to all
forms of community, it has no legitimate role in forming, directing or managing personal friendships,
marriages and religious associations, and it only has such a role in relation to non-instrumental associations
in very exceptional circumstances. See John Finnis, 'Is Natural Law Theory Compatible with Limited
Government?' in Robert P George (ed), Natural Law, Liberalism, and Morality Clarendon Press, Oxford,
1996, p 5 (published in an earlier form as ‗Liberalism and Natural Law Theory‘ (1994) 45 Mercer Law
Review 687).
41
Finnis, 1980, pp 147-8.
 12

‗giving force‘ to the rules and normative arrangements adopted by other associations
within the political community, with the implication that they do not (and should not)
pretend to monopolise the forms of association available to members of the community.42
Moreover, Finnis argues that it would be unsafe to accept uncritically the ‗pretensions of
the modern state‘ in its claims to completeness, self-sufficiency and sovereignty, and to
this end he notes the existence of wider relationships and communities that transcend the
nation-state, such as those constituted by ecological interdependencies, transnational
communications, scholarly communities, ideological movements, religious communions
and various international institutions and arrangements.43
Unlike the goods pursued directly by individuals, families and so on, the common
good of the political community is instrumental rather than basic; it is a matter of
facilitating the non-instrumental goods that are the proper focus of individuals and
families. Accordingly, the common good of the state, which Finnis, following Aquinas,
calls the ‗public good‘, is limited.44 Noting that all communities rest on certain shared
goals among their members, Finnis argues that the distinctive common good of a political
community is the ‗securing of a whole ensemble of material and other conditions that
tend to favour the realization, by each individual in the community, of his or her personal
development‘.45 This means that a political community does not, as F.A. Hayek similarly
insisted, have some ‗definite‘ objective or ‗determinable set of aims‘, for it is impossible
to formulate one single, co-ordinated set of reasonable life-plans that the state can
reasonably require of its members.46 All that could possibly be stipulated is that the state
has as its purpose the support and encouragement of the choice of reasonable life-plans
by individual agents, and that discouraging the pursuit of unreasonable ones is ancillary
to this purpose.
Accordingly, the restrictions on individual liberty that can be authorized by the
public good are shaped by Finnis‘s account of what it means for an individual to
formulate a practically reasonable set of life-goals. Finnis is not a legal paternalist. He

42
Finnis, 1980, pp 148-9.
43
Finnis, 1980, pp 149-50.
44
Finnis, 1998, note 12 above, pp 219-54. See also John Finnis, 'Public Good: The Specifically
Political Common Good in Aquinas' in Robert P George (ed), Natural Law and Moral Inquiry: Ethics,
Metaphysics, and Politics in the Work of Germain Grisez, Georgetown University Press, Washington DC,
1998.
45
Finnis, 1980, note 9 above, p 154.
46
Finnis, 1980, p 155. See Friedrich August Hayek, Law, Legislation and Liberty: A New
Statement of the Liberal Principles of Justice and Political Economy, Routledge & Kegan Paul, London,
1973-1979, especially Volume 2: The Mirage of Social Justice, 1976, ch 7 (‗General Welfare and Particular
Purposes‘).
 13

denies that it is the role of the state to promote virtue and repress vice using its coercive
powers.47 In contrast to what he refers to as the ‗all-inclusive common good of the state‘,
which would include an interest in the development of the complete virtue of each of its
members,48 in securing the public good the state is not looking to develop complete virtue
in each individual. Although it is a legitimate goal of the state to encourage its members
to attain virtue to the fullest extent, its use of coercion must be limited to those goods that
relate to people‘s external dealings with each other. These are the goods of justice and
peace.49 The peace the state seeks to promote through its government and law amounts to
the full set of conditions necessary for individuals to benefit from living in a society.50
The maintenance of justice and peace is to enable individuals and families to make
reasonable choices among extraordinarily diverse ensembles of rationally desirable
goods. Of course, many choices will be unreasonable, but as long as that
unreasonableness does not involve interpersonal injustice or a breach of peace, a
government has no legitimate authority to seek to prevent them. On this view, truly
private immoralities, because they do not impact on matters of justice and peace, are not
within the jurisdiction of government‘s coercive power.51 To be sure, Finnis‘s
conception of public morality includes a legitimate concern about the moral corruption of
others, as well as the moral corruption of oneself, but this is attached to the overriding
qualification that the state only has a compelling interest in coercively preventing self-
corruption where such corruption poses a threat to others, either directly or by a
sufficiently proximate impact on the moral environment.52
In this connection, Finnis argues that a distinction must be drawn between the
political community‘s interest in its adult members and its concern for children. The
common good includes the flourishing of children, who as immature persons are entitled
to grow up in an environment in which they may mature and then choose freely as adults.
One of the purposes of the state, then, is to support a milieu that assists parents in raising
their children. Part of this role involves education and, specifically, moral education.
Accordingly, legitimate government interference with respect to children will be of a
different scope than it is with adults. The obligation to protect and nurture children to
become mature citizens will also inevitably create restraints on the wider community.

47
Finnis, 1996, note 41 above, pp 6-7.
48
Finnis, 1998, note 12 above, pp 235-36.
49
Finnis, 1998, pp 226-28.
50
Finnis, 1998, pp 230-31.
51
Finnis, 1998, pp 230-34.
52
These and other constraints on government distinguish Finnis‘s position from the unlimited
state-perfectionism which Isaiah Berlin criticised in his ‗Two Concepts‘ essay, note 8 above.
 14

Thus, it is legitimate for government to act on the state‘s interest in children by enacting
laws restricting children‘s access to harmful addictive substances, to portrayals of classes
of people as inferior and subordinate, and to portrayals of human sexuality that rob it of
beauty and dignity.53 Even children‘s knowledge of the availability of valueless pursuits
for adult members of the state arguably undermines the state‘s attempts to assist parents
in inculcating virtue in their children. It may therefore be the case that, in some
instances, the effect on children of such knowledge of adult pursuits, which absent the
effect on children could not be matters of injustice or peace, will nevertheless be the
legitimate subject of legal prohibition.54

IV. Distributive and commutative justice

Finnis‘s account of the common good, subsidiarity and the legitimate role of government
shapes and informs his discussion of justice, both distributive and commutative. No
individual will flourish, he argues, unless there is effective collaboration and co-
ordination of resources and enterprises for the common good.55 As such, justice has to do
with relationships between individuals in community; it concerns the correlative duties
and rights of individuals; and it turns on an appropriate equality or proportionality of
treatment of each.56 Finnis follows Aquinas‘s classic distinction between distributive and
commutative justice (a revision of Aristotle‘s distinction between distributive and
corrective justice).57 For Finnis, distributive justice is concerned with the reasonable
distribution of the ‗common stock‘ and ‗incidents of the communal enterprise‘ among
individuals and groups, whereas commutative justice is specifically about dealings
between individuals and groups where the ‗common stock‘ is not in issue, but only the
property, rights and legitimate interests of the particular individuals or groups concerned.
Thus, even in the case of distributive justice, what matters is the flourishing of
individuals. Indeed, Finnis points out that to speak of a certain practices being for the
benefit of ‗the community‘ is dangerous, unless it is strictly recalled that the common

53
Finnis, 1998, note 12 above, pp 232-34; Finnis, 1980, note 9 above, pp 216-18.
54
Finnis, 1998, note 12 above, pp 232-34.
55
Finnis, 1980, note 9 above, p 165.
56
Finnis, 1980, pp 161-3.
57
Finnis, 1980, pp 166-7, 177-9. Finnis explains that corrective justice is on Aristotle‘s account
limited to the rectification of inter-personal wrongs, such as tortuous negligence and breach of contract.
However, corrective justice presupposes a prior determination of what is a just state of affairs as between
individuals (or groups); commutative justice is intended to encompass both this just state of affairs and the
rectification of departures from that set of conditions.
 15

good is essentially the good of individuals, not an abstract entity called ‗society‘ that
somehow ‗absorbs the individual‘.58
Because what he calls the ‗good of personal autonomy‘ is an essential aspect of
personal flourishing, in most circumstances and conditions Finnis says that individuals
ought to be free to own private property, including the means of production, and to
initiate and engage in private enterprise as an aspect of their personal flourishing.59 This
is in part also due to the fact that in most circumstances, the realities of human nature
mean that natural resources are more efficiently and productively used and maintained by
private initiative.60 However, Finnis at the same time issues an important qualification:
private ownership is justified so long as material goods are not ‗hoarded‘61 by the wealthy
but are made generally available to all through appropriate mechanisms, among which he
lists commercial investment, employment, profit-sharing and competitive trade.62
Finnis‘s account is intentionally general, and leaves open a great variety of legitimate
property regimes, dependent on time, place and circumstances.63 And because his
account is premised on the value of ‗reasonable autonomy‘, Finnis in one place maintains
that the fruits of private property and enterprise are justified specifically to meet the
owner‘s ‗needs‘ and that beyond this, owners of successful enterprises owe moral duties
to invest, to employ and to give, so that if owners do not undertake these duties the state
has legitimate authority to implement schemes of compulsory redistribution.64 But later
he expands upon the just principles of a proportionate distribution of communal goods to
include not just ‗need‘ in a personal or private sense, but also what is needed by an
individual to perform his or her ‗functions‘, ‗roles‘ and ‗responsibilities‘ within the
community and to realize an individual‘s potentialities, as well as properly to reward
various forms of merit (eg, self-sacrifice, thrift, effort and foresight).65
Such an account of distributive justice might lead one to surmise that Finnis
envisages a Platonic master class of philosopher-kings who have the requisite knowledge
and virtue to make specific distributive judgements encompassing an entire society.

58
Finnis, 1980, p 168.
59
Finnis, 1980, p 169.
60
Finnis, 1980, pp 170-71.
61
Finnis, 1980, pp 172-3. Finnis‘s passing criticisms of ‗non-productive‘ activities such as the
‗hoarding of gold‘ and the ‗speculative acquisition‘ of property do not discuss the possible economic
benefits of these forms of saving, trading and investment, as well as the costs and unintended consequences
of attempting to regulate or prohibit them.
62
Finnis, 1980, p 170.
63
Finnis, 1980, p 171.
64
Finnis, 1980, p 173.
65
Finnis, 1980, p 174-5.
 16

However, Finnis cautions against the pretensions of any such ‗utilitarian‘ calculations by
stressing that the requirements of practical reasonableness come down to the actions of
responsible agents in their specific circumstances, including benefits personally received,
commitments undertaken and relationships of dependence and interdependence of
various kinds.66 Indeed, in a critique of contemporary understandings which see
distributive justice as entirely a function of the state, Finnis emphasises what he regards
as the genuinely Thomistic view that the responsibilities of distributive justice are
primarily in the form of duties owed by individuals, families and associations within a
society, and only secondarily involves the state in its proper supervisory function to step
in and enforce those duties when they are not effectively performed.67 Finnis‘s account
of distributive justice thus mediates between the extremes of utilitarian-socialist
redistribution and classical liberalism at a very fundamental level: his account insists that
distributive justice is primarily a matter of individual responsibility, it is concerned
principally with enabling individuals to flourish, and it treats the coercive authority of the
state as in this respect corrective, rather than directive.68
Finnis‘s account of commutative justice is more sketchy. What is perhaps of
greatest importance for his wider theory of liberty is his analysis of the dimensions of
commutative justice into five categories, viz.: (1) relations between two ascertained
individuals, (2) relations between an individual and several other ascertained individuals,
(3) relations between an individual and several other non-ascertained individuals, (4)
relations between an individual and the governing authorities of a political community,
and (5) relations between persons holding governing authority and those subject to their
authority.69 Finnis‘s concern here is immediately about mutual relationships of duty and
right in a moral sense, but the analysis applies similarly to relationships of duty and right
in a legal sense, and lays a clear foundation for Finnis‘s later adaptation of Hohfeld‘s
analysis of rights to construct a theory of legal ‗rights‘, encompassing what Hohfeld
distinguished as claim rights, liberties and immunities.

V. Political liberty, legal rights and the rule of law

According to Finnis, the legitimate authority of government is properly limited by an
instrumental conception of the common good, by the moral principles and norms of

66
Finnis, 1980, pp 175-7, see also pp 192-3.
67
Finnis, 1980, pp 184-8,
68
As Finnis puts it, it is the role of the state to ‗crystallize‘ and ‗enforce‘ the responsibilities that a
property holder already has, and to do so only when the holder of property has been ‗recalcitrant‘: Finnis,
1980, p 187.
69
Finnis, 1980, p 184.
 17

justice that apply to all human conduct, and by the constraints of positive (especially
constitutional) law.70 The common good of the state, understood as an instrumental good
that facilitates the flourishing of individuals and groups within a society, constrains the
legitimate goals of government.71 Moreover, because rulers are themselves responsible
agents, they are subject to the same moral norms of conduct and principles of justice as
ordinary individuals, and are not free to disregard fundamental moral duties against
intentional killing of the innocent, deliberate deception, non-penal enslavement, and so
on.72 These moral principles and norms of justice accordingly entail the existence not
only of ‗unconditional, exceptionless limitations on government‘, but also of reciprocal
and ‗truly inviolable rights‘, to be enjoyed by all persons.73 Furthermore, to make the
enjoyment of these rights secure, it seems, there is good reason for government
authorities to be constrained, not only by these rights and duties understood in moral
terms, but also by legally-enforceable definitions of and constraints on power, primarily
in the form of positive constitutional law.74
To articulate these sets of reciprocal rights and duties—both moral and legal—
Finnis readily adopts the analysis of Wesley Hohfeld, who distinguished four different
kinds of ‗right‘, which Finnis respectively calls ‗claim rights‘, ‗liberties‘, ‗powers‘ and
‗immunities‘.75 As Finnis clarifies, a person (A) has a ‗claim right‘ when another person
(B) has a duty to do or abstain from some particular action, ‗duty‘ here being the logical
correlative of ‗claim right‘; a ‗liberty‘ exists when a person (B) has the freedom to do (or

70
See Finnis, 1996, note 41 above.
71
Finnis, 1996, pp 4-9.
72
Finnis, 1996, p 2.
73
Finnis, 1996, pp 2-3.
74
See Finnis, 1980, note 9 above, pp 250-54, 259, 270-76. See also John Finnis, 'Revolutions and
Continuity of Law' in AWB Simpson (ed), Oxford Essays in Jurisprudence: Second Series, Clarendon
Press, Oxford, 1973, p 76. For Finnis, the judgement about whether bills of rights or federal divisions of
power ought to be constitutionally entrenched and enforced by judicial review depend on the circumstances
of a particular society, and decisions either way involve risks of future injustice: see John Finnis, 'A Bill of
Rights for Britain? The Moral of Contemporary Jurisprudence' (1985) 71 Proceedings of the British
Academy 303. As Finnis elsewhere has put it: ‗although judicial protection of rights and the rule of law are
indispensible elements of the common good, litigation—particularly when it invites judges to consider
directly whether ―overriding and sufficient reasons‖ exist for some legislative act—can involve a loss of
perspective inimical to the common good ...‘. John Finnis, 'Common Law Constraints: Whose Common
Good Counts?' (Paper presented at the Colloquium on Common Law, Royal Prerogative and Executive
Legislation, Cambridge, 19 January 2008), para 24.
75
Finnis, 1980, 199-205. See also John Finnis, 'Some Professorial Fallacies About Rights' (1972)
4(2) Adelaide Law Review 377.
 18

not do) some particular action, the correlative being the non-existence of a claim right in
any other person (A) that B perform (or not perform) the act in question; a person (A) has
a power when another person (B) has a ‗liability‘ to have his or her legal position
changed by A (eg, through the imposition of some duty or the conferral of some liberty,
power or immunity); and a person (B) has an ‗immunity‘ when A has ‗no power‘ to
change B‘s legal position.76 On this analysis, duties, claim rights and liberties pertain to
what might be called primary legal relationships, whereas powers, liabilities and
immunities pertain to secondary legal relationships that concern the creation (or
abolition) of legal rights of any of these kinds. Powers, liabilities and immunities thus
pertain to the capacities of ‗public‘ authorities such as legislatures, executives and
judiciaries to make, execute and adjudicate upon the law, but they also refer to ‗private‘
capacities to alter legal rights, such as through the formation of contracts, the execution
of wills and the creation of trusts.
Finnis is conscious that the modern language of rights is different from an earlier,
less differentiated idiom, which used ius to designate an objectively just set of conditions
as well as the specific subjective rights and duties of individuals, without explicitly
distinguishing them.77 Finnis thus considers the modern language of subjective rights, as
clarified by Hohfeld, to provide a precise and suitable way of specifying the personal
implications of any particular set of laws; however, he also maintains that the language of
rights is in certain respects less well-suited than the language of duty to articulate the
requirements of the common good as instantiated within a particular community‘s system
of law.78 Abstract declarations of rights, as in international treaties or national
constitutions, can be effective ways of ‗sketching the outlines of the common good, and
the various aspects of individual well-being in community‘,79 but Finnis warns against
the potentially confusing ‗conclusory force of ascriptions of rights‘,80 as when assertions
of rights are not subjected to a rational process of specification, assessment and
qualification.81 For Finnis, this process of particularisation is clarified by the Hohfeldian
analysis of rights as involving a three term relation between the right-holder, the
correlative duty-holder and the relevant act-description, as well as the Hohfeldian
distinction between claim rights, liberties, powers and immunities, including their

76
Finnis, 1980, 199.
77
Finnis, 1980, pp 206-10. See also John Finnis, 'Aquinas on Jus and Hart on Rights: A Response
to Tierney' (2002) 64 The Review of Politics 407.
78
Finnis, 1980, p 210.
79
Finnis, 1980, p 214, emphasis in original.
80
Finnis, 1980, p 211, see also pp 220-21.
81
Finnis, 1980, p 218. See also Finnis 1985, note 75 above.
 19

respective correlative statuses. Specification of a person‘s rights means clarification of

the precise terms and qualifications of these particular rights-conditions, spelt out for all
of the individuals (and other juristic persons) involved.82 This involves determining the
scope of each right in relation to all of the other rights legitimately possessed by others.
In order to do this, Finnis argues, there is no way other than ‗to hold in one‘s mind‘s eye
some pattern, or range of patterns, of human character, conduct, and interaction in
community, and then to chose such specification of rights as tends to favour that pattern,
or range of patterns‘, which is to say that one must have a conception of the common
good, and of individual flourishing in a form of communal life. 83 The merit of rights-
language, Finnis argues, is that it emphasises the truth that every individual human being
is a ‗locus of human flourishing‘.84 It also provides ample opportunity to specify in legal
terms, the specific and genuinely exceptionless rights to which each individual is actually
entitled, which derive from the principle of practical reasonableness which asserts that it
is always unreasonable to choose directly against any basic good.85
The Hohfeldian language is also apposite for clarifying the nature and scope of
legitimate political authority vis a vis the rights of those subject to such authority. For
Finnis, political authority is needed to solve co-ordination problems between members of
society, given the fact that there is a very wide range of fully justified laws that could be
adopted (tailored to the conditions of a particular society for the common good of its
members), and that unanimity about such matters is unlikely.86 While Finnis regards it as
a matter for political science to determine the best form of government, both abstractly
and under particular conditions,87 he notes that rational reflection upon the problems of
social order leads political communities to adopt constitutional provisions that define the
location of political authority,88 and he argues that constitutional rules that purport to bind
the person or institution that has the power to make law in a political community are to be
regarded as much as law as any other duly enacted provisions, notwithstanding the fact
that the lawmaker may have the acknowledged legal capacity to change that law in the
future.89

82
Finnis, 1980, p 219.
83
Finnis, 1980, p 219.
84
Finnis, 1980, p 221.
85
Finnis, 1980, p 225.
86
Finnis, 1980, ch 9.
87
Finnis, 1980, p 252.
88
Finnis, 1980, p 250.
89
Finnis, 1980, p 254.
 20

These conditions in turn enable the rule of law and constitutional government to
be possible, the fundamental point of which is to secure to subjects of the law what Finnis
calls the ‗dignity of being responsible agents‘ or the ‗dignity of self-direction‘, as well as
‗freedom from certain forms of manipulation‘ by those who govern.90 Drawing on Lon
Fuller‘s seminal analysis, Finnis argues that the rule of law amounts to a legal system in
which there is sufficient consistency and predictability of the law to enable those subject
to the law to order their lives reliably, in a manner free from arbitrary and unjust exercise
of political authority. Fundamental conditions of the rule of law, such as promulgation,
clarity, consistency, stability and prospectivity, Finnis maintains, are essential to enable
law to be what it is meant to be, namely a system of determinate rules aimed at securing
the common good of a political community.91 For Finnis, legal rationality, with its
‗artfully assigned meanings‘, ‗rules of argument‘, and formal decision-making
procedures, is a deliberately artificial and technical form of reasoning intended to provide
relatively determinate and authoritative guidance to individuals, legal advisors and judges
concerning disputable questions about what the common good specifically requires in a
particular society.92 While Finnis does not make it explicit, Hohfeld‘s identification of
distinct powers and immunities, in addition to primary claim rights and liberties, provides
a language whereby constitutional constraints on political institutions (embodying such
liberty-regarding principles as government under law, the separation of powers,
compensation for compulsory acquisition of property, etc) can more or less reliably be
implemented. Making these liberties, powers and immunities explicit helps to secure the
legitimate rights of individuals, necessary for them to flourish as they choose courses of
action, undertake projects and formulate life plans of varying descriptions, in exercise of
their fundamental liberties—existential, moral, legal and political.

VI. Particular judgements

Moral and political philosophy for Finnis (as for Aquinas) is practical; it is a matter of
identifying those choices that are truly reasonable (as well as those that are unreasonable)
and providing arguments in defence of (or opposition to) those choices.93 Throughout the

90
Finnis, 1980, pp 272-3.
91
Finnis, 1980, pp 284-7, 289. See also John Finnis, 'The Truth in Legal Positivism' in Robert P
George (ed), The Autonomy of Law, Clarendon Press, Oxford, 1996.
92
John Finnis, 'Natural Law and Legal Reasoning' (1990) 38 Cleveland State Law Review 1 at 6-7.
93
John Finnis, 'Law and What I Truly Should Decide' (2003) 48 American Journal of
Jurisprudence 107; John Finnis, ‗Aquinas‘ Moral, Political, and Legal Philosophy‘, in Edward N Zalta (ed)
The Stanford Encyclopedia of Philosophy (Fall 2008 Edition) <http://plato.stanford.edu/archives/fall2008/
entries/aquinas-moral-political/>.
 21

body of his work, Finnis has gone beyond articulating and defending a theory of practical
reasoning and a theory of law, and has brought these theories to bear on the contentious
debates over, for example, the permissibility of abortion and assisting in acts of suicide,
and the morality of sexual acts.
Having identified from among the first principles of practical reason the supreme
principle of ‗love of one‘s neighbour as oneself‘, Finnis concludes that a person must
choose and act not only to respect one‘s own participation in the basic goods, but must
also respect other‘s participation in those goods. Such reasoning supports a consistent
sanctity of life ethic that Finnis deploys across a range of issues in articles addressing
contraception,94 abortion,95 cloning and embryo research,96 euthanasia and assisting
suicide,97 and the nuclear deterrent.98 In all of these cases, Finnis argues (1) that the first
principle of practical reason requires that one never willingly act so as to damage or
destroy someone‘s participation in one of the basic goods, (2) that human life is such a
good, and (3) that it must therefore be wrong to choose to kill human life, whether the life
in question is that of a foetus, an embryo, an elderly adult, or a civilian non-combatant in
a time of war. Although Finnis at one time argued that natural law ethics did not exclude

94
John Finnis, 'Natural Law in Humanae Vitae' (1968) 84 Law Quarterly Review 467; John Finnis,
Moral Absolutes: Tradition, Revision and Truth, Catholic University of America Press, Washington, DC,
1991.
95
John Finnis, 'The Rights and Wrongs of Abortion: A Reply to Judith Jarvis Thomson' (1973) 2
Philosophy & Public Affairs 117; John Finnis, 'Abortion, Natural Law and Public Reason' in Robert P
George and Christopher Wolfe (eds), Natural Law and Public Reason, Georgetown University Press,
Washington DC, 2000.
96
John Finnis, 'Public Reason, Abortion and Cloning' (1998) 32 Valparaiso University Law
Review 361; John Finnis, 'Some Fundamental Evils of Generating Human Embryos by Cloning' in Cosimo
Marco Mazzoni (ed), Etica Della Ricerca Biologica, Leo S. Olschki Editore, Florence, 2000.
97
John Finnis, 'Bland: Crossing the Rubicon?' (1993) 109 Law Quarterly Review 329; John Finnis,
'The ‗Value of Human Life and the Right to Death‘: Some Reflections on Cruzan and Ronald Dworkin'
(1993) 17 Southern Illinois Law Journal 559; John Finnis, ‗Submission to the Select Committee of the
House of Lords on Medical Ethics‘ (with Luke Gormally and John Keown for the Linacre Centre for
Health Ethics) (1993); John Finnis, ‗Living Will Legislation‘ in Gormally (ed) Euthanasia, Clinical
Practice and the Law, The Linacre Centre for Health Ethics, London, 1994, pp 113-165 and 167-176; John
Finnis, ‗A Philosophical Case against Euthanasia‘, ‗The Fragile Case for Euthanasia: A Reply to John
Harris‘, and ‗Misunderstanding the Case against Euthanasia: Response to Harris‘s first Reply‘ in John
Keown (ed.), Euthanasia: Ethical, Legal and Clinical Perspectives, Cambridge University Press,
Cambridge, 1995, pp 23-35, 46-55, 62-71; John Finnis, ‗Euthanasia, Morality and Law‘ (1998) 31 Loyola
of Los Angeles Law Review 1123.
98
Finnis, 1980, note 9 above, pp 224-5; John Finnis, Joseph Boyle and Germain Grisez, Nuclear
Deterrence, Morality and Realism, Clarendon Press, Oxford, 1987.
 22

the possibility of the death penalty because it need not involve an intent to kill,99 he later
rejected this argument as mistaken.100
In the same way that the judgements above are all specifications of what is
required in order to respect the good of human life impartially, Finnis has argued from
the basic good of marriage101 that non-marital sexual acts are impediments to that good,
and are thus unreasonable.102 Finnis‘s writing on the moral significance of sexual acts
flows from a conception of marriage as a human good that is oriented towards two things:
(1) the personal community, or fides, or friendship of the spouses, and (2) the bearing and
raising of children. Where sexual acts manifest a choice against these goods they are
morally bad, regardless of whether the acts are heterosexual or homosexual in nature or
are performed by married or unmarried persons.103 Finnis‘s well-known judgment about
the immorality of homosexual sex104 is simply one conclusion about what is required to
respect the particular human good of marriage. But respect for the good of marriage—in
oneself and others—also entails conclusions about the morality of pornography,105

99
Finnis, 1983, note 14 above, pp 127-30.
100
Finnis, 1998, note 12 above, p 293.
101
In commenting on the omission of marriage from his list of the basic goods in Natural Law and
Natural Rights, Finnis explained that there he had ‗failed to reach any clear or stable position on the place
of transmission of life, procreation and marital friendship‘. John Finnis, ‗Marriage: A Basic and Exigent
Good‘ (2008) 91 The Monist 388, note 7. ‗Marriage is a distinct fundamental human good because it
enables the parties to it, the wife and husband, to flourish as individuals and as a couple, both by the most
far-reaching form of togetherness possible for human beings and by the most radical and creative enabling
of another person to flourish, namely, the bringing of that person into existence as conceptus, embryo,
child, and eventually adult, fully able to participate in human flourishing on his or her own responsibility.‘
See Finnis 2008, p 389.
102
John Finnis, ‗Natural Law: the Classical Tradition‘ in Jules Coleman and Brian Leiter (eds) The
Oxford Handbook of Jurisprudence and Philosophy of Law, Oxford University Press, Oxford, 2000, pp 41-
45.
103
Aquinas gives the example of the person who engages in sex with his or her spouse, while
preferring that he or she were actually having sex with someone else (Finnis, 1998, note 12 above, pp 148-
49).
104
John Finnis, ‗Legal Enforcement of ‗Duties to Oneself‘: Kant v. Neo-Kantians‘ (1987) 87
Columbia Law Review 433; John Finnis, ‗Law, Morality, and ―Sexual Orientation‖‘ (1994) 69 Notre Dame
Law Review 1049; John Finnis, ‗The Good of Marriage and the Morality of Sexual Relations: Some
Philosophical and Historical Observations‘ (1997) 42 The American Journal of Jurisprudence 97; Finnis,
2008, note 102 above.
105
John Finnis, ‗Reason and Passion: The Constitutional Dialectic of Free Speech and Obscenity‘
(1967) 116 University of Pennsylvania Law Review 222.
 23

adultery, and any other form of non-marital sex (whether heterosexual or homosexual in
nature).
However, while Finnis is sometimes misrepresented as advocating the
criminalization of homosexual acts, he expressly argues the contrary precisely for the
reason that the public good for which the state can exercise its coercive powers is limited
to those matters that bear on interpersonal justice and peace. That is to say, the
specifically political common good is instrumental and limited. The moral wrongness of
an act is therefore not sufficient grounds for its criminalization.106 In commenting on
Aquinas‘s account of when the state is justified in using coercive force,107 Finnis
concludes that Aquinas‘s position is not readily distinguishable from the ‗grand simple
principle‘ (itself open to interpretation and diverse applications) of John Stuart Mill‘s On
Liberty.108 With Mill, much turns on what constitutes the relevant species of harm. With
Finnis, much turns on what is determined to be a requirement of interpersonal justice and
what is determined to be a truly private act. Truly private actions (whether reasonable or
unreasonable) do not—by definition—involve persons other than willing participants and
so are not considered to be matters of justice at all. While Finnis does not often drill
down to concrete applications of this principle, he does address the criminalization of
homosexual acts in precisely these terms. Although Finnis considers that homosexual
acts are immoral, and maintains that it would be unreasonable for the state to sanction a
form of marriage for same-sex couples, and an injustice for the state to teach that
homosexual acts can be reasonable, he has consistently argued that private, consensual
homosexual acts do not fall within the jurisdiction of the state and ought not to be subject
to criminal prohibition.109

106
‗But it is one thing to maintain, as reason requires, that political community‘s rationale requires
that its public managing structure, the state, should deliberately and publicly identify, encourage, facilitate,
and support the truly worthwhile (including moral virtue), should deliberately and publicly identify,
discourage, and hinder the harmful and evil, and should by its criminal prohibitions and sanctions (as well
as its other laws and policies) assist people with parental responsibilities to educate children and young
people in virtue and to discourage their vices. It is another thing to maintain that rationale requires or
authorizes the state to direct people to virtue and deter them from vice by making even secret and truly
consensual adult acts of vice a punishable offense against the state‘s laws.‘ Finnis, 1996, note 41 above, pp
8-9.
107
Note that Finnis previously advanced his argument for limited government against what he
then understood to be Aquinas‘s paternalism (see Finnis, 1994, note 41 above, p 695, note 29). He revised
this reading of Aquinas in Finnis, 1996, note 41 above, p 7 and Finnis, 1998, note 12 above, ch 6.
108
Finnis, 1998, note 12 above, p 228.
109
Finnis, 1996, note 41 above, pp 8-9; Finnis 2000, note 103 above, pp 41-42.
 24

Undoubtedly an act is private if no one (other than consenting adult collaborators)

witness it or (more restrictively still) knows about it. But what of acts that, although
occurring behind closed doors, become notorious (perhaps through the indiscrete
solicitations of the participants)? Is criminal prohibition then a justified response? One
relevant consideration is the impact on children. For Finnis, the possibility of corrupting
children justifies greater restraints than would otherwise be permitted, particularly as it is
one of the purposes of the state to support a milieu that assists parents in raising their
children. As noted earlier, this extends, for Finnis, to laws restricting children‘s access to
harmful addictive substances, to portrayals of classes of people as inferior and
subordinate, and to portrayals of human sexuality that rob it of beauty and dignity.110
Thus, while Finnis is not reluctant to express moral judgements that have
engendered controversy, his account of liberty in its existential, moral, legal and political
dimensions is consistently tied to his wider account of ethical and political theory
generally, and especially his account of the plurality of basic goods, the responsibilities
of practical reasonableness, the nature of the common good, the limited authority of the
state and the moral and legal rights of individuals. Finnis‘s specific judgements about
particular moral questions are grounded on one hand in an acknowledgement of the
existential liberty all human beings and the legal rights (liberties and immunities) of
individuals against the state, and on the other hand in an acknowledgement of the moral
responsibilities of individual agents to make choices and pursue life plans that embody a
unique ensemble of rationally apprehended goods.

VII. Conclusions
The various existential, moral, legal and political dimensions of liberty are each vitally
important ingredients in Finnis‘s ethical, political and legal theory. Existential liberty is
fundamental to his account of the human condition and thus orients his entire theory to
the individual human being as a freely choosing agent. Moral liberty, involving both the
freedom and the duty to make responsible choices among ascertainable goods, places
moral constraints on choices while at the same time affirming the necessity of choice
among equally basic, but incommensurable goods in one‘s decisions, projects and life-
plans. Free choice is in this sense creative and constitutive of the individual and an
essential condition of human flourishing and well-being. On Finnis‘s account, the only
choices that are morally proscribed are those choices which intentionally or directly
damage or harm someone‘s participation in the basic goods, including oneself.

110
Finnis, 1998, note 12 above, pp 232-34; Finnis, 1980, note 9 above, pp 216-18.
 25

Human flourishing requires collaboration and communion with others. The

common good, for Finnis, is nothing more or less than the full set of conditions that
enable individuals to flourish, individually and in freely-chosen associations of many
various kinds. Indeed, for Finnis, there are goods that can only be secured through the
kinds of special relationships that are formed in the kinds of associations we call families,
personal friendships, recreational clubs, business firms, academic societies, religious
orders and so on. Finnis affirms that political community and political authority are
needed in order to enable human beings to enjoy the benefits of communal life, but he
maintains that the state only exists in order to protect and assist individuals and
intermediate associations of all kinds to pursue their own legitimate purposes. The
purpose of the state is to secure the entire ensemble of material and social conditions
needed by individuals and these intermediate bodies, and not to subordinate, direct or
absorb them and their functions. As such, Finnis advances an instrumental and limited
conception of the common good; it is not the function of the state to direct individuals or
make their choices for them, nor to use its coercive powers to promote private virtues and
repress private vices. Rather, the use of coercion ought to be limited to the external effect
of people‘s dealings with one another, as for example when personal actions pose a direct
threat to others or have a sufficiently proximate effect on the physical, social and moral
environment in which all must live. Moreover, while Finnis affirms what Aristotle called
distributive justice as a legitimate and important dimension of justice, what he calls the
‗good of personal autonomy‘ plays a very important role here in affirming the right to
private property and the importance of individual initiative and private enterprise. For
Finnis, this is subject only to the important moral qualification that wealth and resources,
although the just reward for such virtues as thrift, effort and foresight, ought also to be
shared with the wider community through appropriate mechanisms, such as investment,
employment, trade and—only if necessary—redistributive taxation.
As such, the role of the state is limited both in its purpose and its mode of
operation. Finnis affirms the existence of ‗unconditional, exceptionless limitations on
government‘ and ‗truly inviolable rights‘ enjoyed by individuals, suitably protected by
legally-enforceable constraints on power of various kinds. For Finnis, the ‗rule of law‘ is
essential to secure to subjects of the law what he calls the ‗dignity‘ of acting as self-
directing, responsible agents, free from the manipulation of those who possess political
power. Proper constitutional arrangements are thus important here, to help ensure that
political authority stays true to its proper purposes and within its proper bounds.
Although Finnis remains to a degree circumspect about the merits of bills of rights and
similar devices, on his account legal immunities and legal liberties of some kind can
certainly play an important role in preserving the political liberties of individuals, so that
they may in turn be able to exercise their inherent existential liberties in a manner that is
both morally responsible and authentically free.

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