LAWS20101 JURISPRUDENCE 2020-21

FINNIS, NATURAL LAW,

AND OBLIGATION

Course Director
Iain Brassington
iain.brassington@manchester.ac.uk
 LAWS20101 Jurisprudence 2020-21: Finnis

IN THIS SECTION…
We’ll be looking at John Finnis’s restatement of “new Natural
Law” to see how he links the function of law and claims about
legal obligation to an account of human nature and
flourishing. We will consider
• What Finnis holds to be the function of law
• The nature of human flourishing
• Sources of injustice
• The scope and limits of obligation in law

REVIVING A TRADITION

J
ohn Finnis’ Natural Law and Natural Rights (first published in 1980 but with a
substantially expanded edition published in 2011) represents a very
ambitious restatement of the natural law tradition as begun by Cicero and
developed by mediaeval thinkers such as St Thomas Aquinas. As a piece of
analytic jurisprudence, Natural Law and Natural Rights engages in debates
about the nature of law and legal validity - the same debates that engage Austin,
Hart, Fuller (and, as we shall see, Dworkin). However, it’s also an avowedly
normative book. It aims to show not just that law has a moral nature, but to
show also what that nature is: that is, to be able to say not simply whether a law
is valid or not, but also to say something about its moral value in what Fuller
might call “external” or “outer” terms. Of course, a Fullerian theory of the inner
morality may lend itself, at least indirectly, to statements about, say, Nazi
Germany; but those arguments required a bit of working out - and someone
could accept Fullerian claims about the inner morality without necessarily
accepting his claims about whether or not wicked regimes can derogate from

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that inner morality. For Finnis, a question about the nature of law - its authority
and its status as law - is a question about the law’s goodness.

Finnis is also a controversial figure: he’s very Catholic and very

conservative, and this informs his thinking. Indeed, there were protests in early
2019 about his being employed to teach at Oxford at all, provoked by some of
his claims. As spelled out in the news coverage of the petition launched against
him by students, he has written

that homosexuality is “never a valid, humanly acceptable choice and form of

life”. It is “destructive of human character and relationships”, he wrote, because
“it treats human sexual capacities in a way which is deeply hostile to the self-
understanding of those members who are willing to commit themselves to real
marriage”.

Migration is another theme in his writing. In a paper published a decade ago, he

wrote: “European states in the early 21st century move … into a trajectory of
demographic and cultural decay … population transfer and replacement by a
kind of reverse colonisation.” He warned of coming “ethnic and religious inter-
communal miseries of hatred, bloodshed and political paralysis”.1

So why include him in this course?

There’s at least two reasons. The first is that, irrespective of the

controversy that he generates, he is no mean thinker - and he is worth engaging
with even if one disagrees with some, or even all, of the claims he makes. His
approach to understanding law is rich and rewarding; and it is worth thinking
about what he gets right as well as what he gets wrong, and about how the two

1Sherwood, H, “Oxford Students Call for Professor’s Removal over Alleged Homophobia”, The
Guardian 9.i.2019; see also Benn, A, & Taylor, D, “We Don’t Think John Finnis Should Teach at
Oxford University. Here’s Why” The Guardian 11.i.2019

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relate. Can one keep some or most of a person’s thought and jettison some
parts, or must we accept a thinker’s work as all-or-nothing? Might we have to
jettison some of our own intuitions if a good argument cuts against them?

The second is that Finnis has had a big influence not just in the academy,
but in the “real world”: at Oxford, he supervised the doctorate of Neil Gorsuch,
who has served on the bench of the US Supreme Court since April 2017. And
while there is no reason to suppose that doctoral students are disciples of their
supervisors, it is also reasonable to suppose that there is a flow of ideas
between the two, and that a relationship in which student and supervisor had
antagonistic positions would not last long. (And, as it happens, Gorsuch’s book,
The Future of Assisted Suicide and Euthanasia,2 which was based on his DPhil
thesis, does have a hint of Finnisian thought to it.) Finnis also holds a chair at
the University of Notre Dame, as does Amy Coney Barrett, President Trump’s
nominee to replace Ruth Bader Ginsburg on the Bench. Therefore it is
reasonable to say that there is a fairly clear intellectual between Finnis’s study to
the US Supreme Court.

The other thing worth saying about Finnis before we get going is that
Natural Law and Natural Rights is not an easy read. Hart can be quite dry, but he
is generally clear; Fuller rambles a touch, but is quite amiable. Finnis, however,
is incredibly rigorous; each part of his argument is replete with cross-references
to other parts of that same argument - sometimes one feels as if one should be
reading each paragraph at exactly the same time as all the others (and with a
few other publications of his thrown in for good measure). As a piece of
workmanship, it is stunning. But we shall have to tread quite carefully to get our
heads around what’s going on - and inevitably there will be some terms that

2 Gorsuch, N, The Future of Assisted Suicide and Euthanasia (Princeton: Princeton UP, 2006)

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make sense fully only a little while after we’ve introduced them. Our route to
understanding what Finnis is up to will prove to be quite circuitous - and the
part of Natural Law and Natural Rights entitled “A Definition of Law” does not
turn up until Chapter X, on page 276!3

As with much naturalist thought, it’s worth beginning with the question of
what law is for.

WHAT IS LAW FOR?

As we saw, Fuller thought that it was a purposive enterprise aimed at regulating
human affairs. This allowed him to construct an “inner morality”, though an
external morality may not have been so so forthcoming. Hart, too, would have
been happy enough with the thought that law is an enterprise directed at the
regulation of human affairs - and happy enough with the idea that it should and
probably would have some moral content.

Finnis is up to something apparently similar. Law, he holds, has to be

understood in a human context: it’s a human creation, and it serves the human
good. However, the human good is not a human creation: that is a feature of
the world in its own right. This is at the core of Finnis’ naturalism. The upshot is
that, if we want to know what law is, and what it’s for, we have to begin with an
account of the human and the nature of human flourishing.

Finnis’ project builds on the claim that

3 Finnis, J, Natural Law and Natural Rights (Oxford: oxford UP, 2011)

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There are human goods that can be secured only through the institutions of
human law, and requirements of practical reasonableness that only those
institutions can satisfy

It is often supposed that an evaluation of law as a type of social institution must

be preceded by a value-free description and analysis of that institution as it
exists in fact. But no theorist can give a theoretical description and analysis of
social facts without also participating in the work of evaluation, of
understanding what is really good for human persons, and what is really
required by practical reasonableness.4

The term “practical reasonableness” will turn out to be important later. The
general point is that it’s by understanding what law is for that Finnis thinks we
can understand things like the nature of legal obligation. There is a sense in
which, like Fuller, Finnis is offering a teleologically-informed account of law; but
whereas Fuller’s teleology is legal, Finnis’s is human.

The human good secured by law is understood as human flourishing.

Naturally, this simply prompts us to ask what is meant by “flourishing”. And the
idea of human flourishing can be traced back at least as far as Aristotle’s
concept of eudaimonia. Though eudaimonia is sometimes translated as
“happiness”, it is not reducible to bliss or desire satisfaction; rather, it’s a kind of
state of “doing-humanness-well”. When Finnis talks about flourishing, he means
something broadly similar. There is such a thing as human function, and
humans are flourishing when they are functioning well.

Why, though, is the human good not reducible to something more

hedonistic? A person in a state of bliss is, in some sense, happier than a person
is not; a life with more bliss in it is, again in some sense, better than one with

4 ibid, p 3; modified

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less. Yet there may be reasonably intuitive responses that we can give to this.
For sure, a life with some, or even quite a lot, of bliss in it is likely to be better
than one with none. But it doesn’t follow from that that the best life is always
the most blissful, or that the most blissful is the most desirable life.

For example, imagine that someone inserted a device in your brain that
guaranteed a certain level of bliss. In this circumstance, you would arguably
have no reason to do anything - even to attend to what we might politely call
basic biological functions if there were no discomfort or diminution of
happiness by not doing so. Lying in our own filth would make us no less happy
than anything else. Yet it would seem odd to say that this life would be good or
more desirable, all things considered. In a similar sort of way, we might imagine
someone born with a neurological defect that meant that every injury was
experienced as being pleasurable. Such a person would, presumably, have a
more pleasurable life than anyone else; but it would be very strange to think that
such a person’s life was compatible with flourishing, or was a good life all told.
Therefore bliss is not sufficient for a good or flourishing life.

Is it correct to think that there is more to flourishing than pleasure?

Why?
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More positively, Finnis holds that we need projects in our lives: we need
our lives to be for something in order for them to be satisfying. Again, a life
spent with no content beyond staring blankly into the middle distance does not
seem to be a particularly good or flourishing life, even if we are perfectly healthy
while doing it. We can only flourish with projects that give our lives shape.
More, to have a project means to have at least a sense that that project might
plausibly be realised.

But, Finnis argues, our projects require an orderly and reliable social
world for their realisation to be plausible; and for that, we need something like
law. They also require that we cultivate our practical reason - that is, our ability
to put our intellectual capacities to work to achieve certain ends. To see why,
imagine for a moment the hypothesis that the good life really is simply about
securing pleasure, and that the projects we adopt are hedonistic and adopted
wholly for hedonistic reasons. But this can’t be the whole story. After all, a
maxim such as “I want to maximise the pleasure in my life” presupposes that
one has the intellectual capacity to know how to go about it, and the ability to
work out what to do when caught between competing incentives and
potentially incompatible projects. The most committed hedonist will need to
admit that practical reason is a necessary part of the good life.

For similar reasons, Finnis thinks that the projects we choose cannot be
arbitrary: we have to be able to prioritise them, balance them against each
other, and so on. Even if (for the sake of the argument) our list of projects were
initially arbitrary, we would have to be able to rearrange it should the pursuit of
some prove to be inimical to the others.

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Finally, Finnis adds to this a broadly anthropological claim: were it true

that the pursuit of pleasure the overriding or only motivation for human activity,
it would be hard to make sense of a lot of what humans have done:

This notion that pleasure, or any other real or imagined internal feeling, is the
point of everything is mistaken. It makes nonsense of human history and
anthropology. More importantly, it simply mis-locates what is really worthwhile.

[O]ne wants to do certain things; one wants to be a certain sort of person,

thorough one’s own authentic, free self-determination and self-realization; one
wants to live oneself, making a real world through that real pursuit of values that
inevitably involves making one’s personality in and through one’s free
commitment to those values.5

And if this is right, flourishing turns out to be quite rich.

BASIC GOODS
So if it is not reducible to pleasure, what is it that characterises a fully-
flourishing life? Finnis claims that there is a number of “basic goods” that fit the
bill, and that these basic goods are objectively good. That is to say: they’re
goods that any reasonable person would recognise as being goods. That said,
they are also axiomatic: their goodness is presupposed by any thought about
flourishing. We cannot argue for these goods a priori, but rather must assume
their goodness on pain of not being able any longer to make sense of the idea
of human flourishing.

5 ibid, p 95

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There are, Finnis thinks, seven such goods that make human life and
action intelligible, and he sets them out in §IV.2 of Natural Law and Natural
Rights:6

• Life: it’s taken to be fairly obvious that life is a basic good (not least because
we can’t make sense of human action without presupposing that);

• Knowledge: we’ll come back to this!;

• Play: “each one of us can see the point of engaging in performances which
have no point beyond the performance itself”;

• Aesthetic experience: an openness to, and appreciation of, beauty in some

form (natural or artificial);

• Sociability/ friendship: “[F]riendship involves acting for the sake of one’s

friends purposes, one’s friend’s well-being. To be in a relationship of
friendship with at least one other person is a fundamental form of good, is it
not?”

• Practical reasonableness: “the basic good of being able to bring one’s own
intelligence to bear effectively… on the problems of choosing one’s actions
and lifestyle and shaping one’s character”; and

• “Religion”.
A few points might be worth making here. The first is that the appeal to
sociability seems to reflect the classical idea of philia: in its weakest form, says
Finnis,

6 ibid, pp 85-90

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it is realised by a minimum of peace and harmony amongst persons, and which

ranges through the forms of human community to its strongest form in the
flowering of full friendship. Some of the collaboration between one person and
another is no more than instrumental to the realisation by each to his or her own
individual purposes. But friendship involves acting for the sake of one’s friend’s
purposes7.

The second is that the appeal to “religion” is somewhat vague - and it is possibly
important that Finnis puts the word in scare-quotes. By the word, he seems not
to mean any particular dogma, confession, or sect, so much as a reflection of
the idea that human activity relates to a “lasting order”, is transcendent in the
sense of not being reducible to other concerns, and in some sense “matters”.
Whether this any of that is true is, for current purposes, less important than the
question of the role it plays in making sense of human flourishing. That said,
Finnis relies on rhetorical questions rather than on offering positive reasons for
religion’s place as a basic good: this may be telling!8

As for the others: practical reasonableness is a basic good because it is

presupposed in any project that one might adopt. In deciding to pursue x, one
must embrace the means to achieve x – even if, as we have seen, that x is at
least substantially hedonistic. It’s built into any kind of meaningful life that
practical reason is there; and so it doesn’t need an argument for its goodness
beyond pointing out that meaningful lives are good. In a similar kind of way,
denying that knowledge is a basic good is, Finnis contends, self-refuting, since
anyone denying it seems to be presupposing that “Knowledge is not worth
having” is true – that is, the kind of statement that can be an object of

7 ibid, p 88

8The danger with rhetorical questions is that they give several hostages to fortune. Someone
may answer them - and not in the way you’d expected.

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knowledge. (Simmonds points out that we may think that there are
qualifications here, since some knowledge seems to be more important and
desirable, and some seems fairly trivial. Going out into the street and
memorising the registration numbers of passing cars may increase your
knowledge, but it does not seem to be contributing all that much to the good9.
On the other hand, the good of knowledge does not imply the goodness of all
instances of knowledge.)

Has Finnis correctly identified seven “basic goods”? Would you alter
the list in any way? If so, how? Explain your answer.
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Even if Finnis’s argument fails, the basic idea that there is a range of
things required to make sense of human activity does seem stronger.

It is important to note that, in Finnis’s account, one participates in these

basic goods, rather than achieving them. Again, they’re unlike mere pleasure in
this regard. And Finnis takes them to be central to natural law and naturalistic
accounts of law:

9 Simmonds, N, Central Issues of Jurisprudence (London: Sweet & Maxwell, 2018), p 118

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[T]he practical principles which enjoin one to participate in those basic forms of
good, through the practically intelligent decisions and free actions that
constitute the person one is and is to be, have been called in the Western
philosophical tradition the first principles of natural law, because they lay down
for us the outlines of everything one could reasonably want to do, to have, and
to be.10

It may not be wholly clear what this has to do with law yet; but the link will be
made soon enough.

As well as being basic, these good are, Finnis thinks, incommensurable.

One cannot trade one off against the other; on the other hand, many different
forms of life may be reasonable. And so, he thinks, these goods are not
amenable to anything like a utilitarian maximisation process.

Utilitarianism is an approach to ethics that holds that actions are good to the
extent that they promote happiness, and that different actions can be
evaluated and compared in terms of their propensity to generate happiness.
We do not have to say much more at this stage: we’ll encounter utilitarianism
in a bit more depth when we look at Mill, Nozick, and Rawls in later sections of
of the course.

Neither does Finnis think that the list of basic goods that he offers is
necessarily exhaustive, or the only possible list.11 Indeed, he himself offers other
lists of the basic goods elsewhere - as he acknowledges in the appendix at the
end of Natural Law and Natural Rights. Importantly, “there is no objective

10 Finnis, op cit, p 97

11 ibid, pp 90ff

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hierarchy”12 among the goods – each can be seen as the most important. Or, at
the very least, there is no single objective hierarchy; notwithstanding this, Finnis
does think that life “is most necessary, as a precondition for the others;
transmission of life shares in that kind of necessity”13.

Finnis’s talk about the “transmission of life” helps illustrate his position about
homosexuality - and since it’s his position on homosexuality that draws a lot of
critical attention to him, this seems like a good point to take a reasonably
extended look at his position.

He defines homosexuality as “bodily acts, on the body of a person of the same

sex, which are engaged in with a view to securing orgasmic sexual satisfaction
for one or more of the parties” (“Law, Morality, and ‘Sexual Orientation’”, Notre
Dame Law Review 69[5] (1993): 1049-1076, p 1055). He adds to this the claim
that the good of marriage lies in the way that it manifests a kind of association
and and special kind of friendship, the fulfilment of which lies in reproduction:
“Parenthood and children and family are the intrinsic fulfilment of a
communion which, because it is not merely instrumental, can exist and fulfil
the spouses even if procreation happens to be impossible for them” (p 1065).
This, he deduces, explains why the Western (Graeco-Christian) tradition has
traditionally seen homosexual activity as shameful:

The union of the reproductive organs of husband and wife really unites
them biologically (and their biological reality is part of, not merely an
instrument of, their personal reality); reproduction is one function and
so, in respect of that function, the spouses are indeed one reality, and
their sexual union therefore can actualize and allow them to experience

12 ibid, p 92

13 ibid, p 450

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their real common good - their marriage with the two goods, parenthood
and friendship, which are the parts of its wholeness as an intelligible
common good even if, independently of what the spouses will, their
capacity for biological parenthood will not be fulfilled by that act of
genital union. But the common good of friends who are not and cannot
be married (for example, man and man, man and boy, woman and
woman) has nothing to do with their having children by each other, and
their reproductive organs cannot make them a biological (and therefore
personal) unit. So their sexual acts together cannot do what they may
hope and imagine. Because their activation of one or even each of their
reproductive organs cannot be an actualizing and experiencing of the
marital good - as marital intercourse (intercourse between spouses in a
marital way) can, even between spouses who happen to be sterile - it
can do no more than provide each partner with an individual
gratification. (p 1066)

That is: marriage expresses a particular human good, which is fulfilled in

reproduction. Non-reproductive sex is not a manifestation of that good. But
why not allow for homosexual marriage all the same, or admit that there are
other goods outside of marriage? Finnis thinks that to do so would be
corrosive:

All who accept that homosexual acts can be a humanly appropriate use
of sexual capacities must, if consistent, regard sexual capacities, organs
and acts as instruments for gratifying the individual "selves" who have
them. Such an acceptance is commonly (and in my opinion rightly)
judged to be an active threat to the stability of existing and future
marriages; it makes nonsense, for example, of the view that adultery is

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per se (and not merely because it may involve deception), and in an

important way, inconsistent with conjugal love. (p 1070)

In other words, he thinks that non-procreative sex, either inside or outside of

marriage, cannot represent the fulfilment of a human good; and to widen the
concept of marriage undermines the institution and therefore undermines a
human good.

How would you respond to Finnis’s arguments about non-

reproductive non-marital sex? Is it possible to think one thing about
his general approach to the human good and another about his
application of it here? If so, where does he mis-step?
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PRACTICAL REASON REDUX

It is worth going back to look at the idea of practical reason in a little more
depth: Practical reason for him has nine characteristics; and though we don’t
have time to investigate them fully, it’s worth digging a little deeper because of
the importance of practical reason in Finnis’s thinking. These characteristics are
moral insofar as that they describe “what one must do, or think, or be if one is to
participate in the basic value of practical reasonableness”14. To be practically
reasonable, one must have (1) a coherent plan of life that has (2) no arbitrary
preferences amongst values or (3) persons; one must be able to maintain (4)
detachment, balanced with (5) commitment when appropriate; one must have
(6) concern for the limited relevance of consequences and for reasonable
efficiency, and (7) respect for the value in every act; one must (8) favour and
foster the common good; and one must (9) follow one’s conscience.

Note that not having an arbitrary preference for any person or set of
values is compatible with being committed to some - for example, one may
favour close friends or family over strangers; what matters is that the
preferences are not arbitrary.

But why does practical reason matter so much for Finnis? Why does he
pay so much attention to it compared to the other basic goods, especially if
they are non-hierarchical?

The answer to this is that practical reason is at the root of, and secures,
personal autonomy. To be practically reasonable - that is, to exercise practical
reason - is to be the author of one’s own life. And, although autonomy itself
does not appear on the list of basic goods, it is implied by them. Moreover, it

14 ibid, p 100ff

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seems reasonable to suppose that being the author of one’s own life has moral
and political importance - and, as such, it will not be irrelevant to considerations
about what a good society will take into account; and, on that basis, neither will
it be irrelevant to law.

SOCIABILITY AND COMMUNITY

We’re now in a position to say something about the relationship between
individuals and the community - and thereby, at last, to begin to say something
a bit more concrete about law.

If sociability or friendship is a basic good, then we can say that

involvement with at least some others is a manifestation of that. That sociability
has been a part of human flourishing is an idea that goes back at least as far as
Aristotle - “Anyone,” he thinks, “who by his nature and not simply by ill luck has
no state is either too bad or too good, either subhuman or superhuman”15, by
which he means to say that if you’re flourishing outside of a community, that’s a
sign that you’re not human after all. It’s an idea that we can treat as a given.

And if sociability is a basic good, then that would suggest that there is no
fundamental conflict between concern for oneself and engagement within the
community of which one is a part - engagement with that community will, in
fact, probably be wholly compatible with concern for oneself. Hence we can
see in Finnis a belief that human flourishing is anchored alongside other
humans. And so, though we have a good reason to pursue our own projects for
the sake of the good life, this is not at the exclusion of others, because others
are another formative part of the good life.

15 Aristotle, The Politics (London: Penguin, 1992), 1253a1

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Sociability neither displaces nor is displaced by other goods; there will be

things that we pursue perfectly properly even if they are not parts of friendship
and sociability. Remember here that flourishing is multifaceted, and it’s
flourishing, rather than any of the basic goods that are its component parts, that
is the focus.

But while life alongside others is good, it is also a source of difficulties.

Having projects, and being committed to the realisation of those projects - one
of the features of the good of practical reason - will imply commitment to
whatever helps or is necessary to secure them. But this will mean that we need
institutions like law because social existence brings with it what Finnis calls
“coordination problems”16; the primary function of law is to bring

definition, specificity, clarity, and thus predictability into human interactions, by

way of a system of rules and institutions so interrelated that rules define,
constitute, and regulate the institutions, while institutions create and administer
rules, and settle questions about their existence, scope, applicability, and
operation.17

Social existence means that there is scope for conflict between individuals that
must be resolved. To give a very basic example, if everyone wants to be able to
travel by car, it will be helpful to have traffic laws to set out ways to ensure that
everyone can do so in the most effective way possible. Correspondingly, the
“Rule of Law” describes “the state of affairs in which a legal system is legally in
good shape”, and is exemplified when we find satisfied a list of desiderata that
Finnis borrows fairly straightforwardly from Fuller.18

16 Finnis, op cit, passim

17 ibid, p 268

18 ibid, p 270

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And now, at long last, we are in a position to be able to say something

more directly about legal obligation.

LEGAL OBLIGATION
The thought here is that, if law is, at least when functioning properly, the
institution that helps or allows us to solve coordination problems, and if their
solution is a part of the good life qua being a member of the community, that
would seem to suggest that we ought to adhere to law. Not to do so would be
irrational, because it would erode our ability to realise our own projects, and
would therefore in tension with practical reason, which is a basic good. Put
slightly more technically, it’s a practical imperative from which a moral
imperative flows.

Conversely, we can make claims about the “common good” as being

interests shared by all persons within the community. And to the extent that we
have a reason to be committed to that community, we could hope to be able to
say something about what the community can demand of us. Thus, as Finnis
puts it,

[t]he proper function of association is to help the participants in the association

to help themselves or, more precisely, to constitute themselves through the
individual initiatives of choosing commitments (including commitments to
friendship and other forms of association) and of realising these commitments
through personal inventiveness in projects.19

Granted this hypothesis, we should be able to make certain predictions about

the nature of law, and what law should be, based on observations about the

19 ibid, p 146

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human good. Bluntly, if law is directed at protecting and promoting human

flourishing - if that is what law is “for” - it’ll take this into account, at least
indirectly. (As with Fuller, we’re talking here about law in the wide sense; Finnis
isn’t particularly concerned about particular laws. That said, he thinks that we
might be able to make certain predictions and normative claims about what sort
of things they’d say: his claims about homosexuality are the most obvious and
controversial application of this. Nevertheless, the general concern is with with
legal systems rather than individual statutes or precedents.)

Now, on this point, Finnis is perhaps even more hard to follow than he is
normally; but he sets out his position in this monster of a sentence:

The term “law” has been used with a focal meaning so as to refer primarily to
rules made, in accordance with regulative legal rules, by a determinate and
effective authority […] for a “complete” community, and buttressed by sanctions
in accordance with the rule-guided stipulations of adjudicative institutions, this
ensemble of rules and institutions being directed to reasonably resolving any of
the community’s coordination problems […] for the common good of that
community, according to a manner and form itself adapted to that common
good by features of specificity, minimisation of arbitrariness, and maintenance
of a quality of reciprocity between the subjects of the law both amongst
themselves and in their relations with the lawful authorities.20

(Believe it or not, I have edited the sentence down!) We can afford to take our
time to examine what’s going on here.

In the first place, we can see the central importance of the idea that the
law exists in order to solve the community’s coordination problems reasonably,
where those coordination problems are the problems that arise in the course of

20 ibid, pp 276-7

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many people living alongside each other, each pursuing some version of the
good. We can see also that there are rules that are stipulated by legal
institutions - no naturalist would deny that statutes are posited, after all: they
simply claim that their having been posited is not a guarantor of their validity.
We can see, too, that those institutions have the common good in sight. And we
can see that there is a claim about the relationship between members of the
community, and between individuals and the lawful authorities in the
community, being one of reciprocity.

What should we make of the claim about the common good, though?
Does this mean that the community in the broad sense can require that
individuals defer to, or sacrifice their interests on the altar of, the community
writ large?

To answer this question, we need some account of the relationship

between the individual and the community. But, it turns out, we already have
this, based in the account offered of sociability as a basic good. Finnis’s
argument, after all, makes a lot of play of the claim that some kind of
involvement and engagement with others is a part of the human good, and is
therefore something that we should endorse. Even the most self-interested
person must recognise that they rely on the community for the realisation of
their own goods; and so even the most self-interested person must see their
interests as inextricable from the common good.

JUSTICE IN LAW
Finnis suggests that this allows us to make certain predictions about justice.
Notably, he claims that “[t]he authority of law depends on its justice or at least

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its ability to secure justice”21. Implicit in this is the idea that, when the law does
not secure justice, it will lose authority. But the problem here is that “justice” is
quite a “thin” concept: everyone can agree that securing justice is important,
but they may have wildly competing views of what actually constitutes it. So
what is it that Finnis has in mind?

He sets out his position in chapter VII of Natural Law and Natural Rights,
saying that

The requirements of justice are the concrete implications of the basic

requirement of practical reasonableness that one is to favour and foster the
common good of one’s communities. That principle is closely related to the
basic value of friendship and to the principle of practical reasonableness which
excludes arbitrary self-preference in the pursuit of good.22

The requirements of justice spin off from the idea of acting in accordance with
the common good, an idea which reflects the basic goods of sociability, and
practical reason. This is why it was worth mentioning the nine characteristics of
practical reasonableness a little while ago: they mandated that we not prefer
ourselves arbitrarily in our actions. (Again: some degree of preference is
compatible with practical reason; but arbitrary self-preference is, simply by
virtue of being arbitrary, not based in reason, practical or otherwise.)

Still: to say that justice spins off from the idea of acting in the common
good may not tell us anything all that substantial. What, precisely, does it
require? Here, it may be useful to come at the question by considering what
Finnis holds to be unjust.

21 ibid, p 260

22 ibid, p 164; slightly modified

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He sets out four sources of injustice23:

• Factionalism: since (and if) legal authority depends on the law’s serving the
common good, it follows that “the use of authority by rulers is radically
defective” if that authority is exploited in such a way as to favour themselves,
or their friends, party, faction, tribe, or whatever, or to disadvantage others
out of malice. This is a defect of intention. (Note, though, that a law may be
factional and so unjust even if it happens to serve the common good “by
accident”.)

• Improper use of power: since (and if) determining who has authority in a
given situation depends on certain rules and conventions, it may be possible
for those with power to overstep their role and to act ultra vires; this may be
witting or unwitting, but either way it indicates an improper assumption of
authority, which is unjust. This is an authorial defect.

• Misapplication of authority: since (and if) the exercise of authority in

conformity with the Rule of Law serves the common good, and it serves
justice by “affording all an equal opportunity of understanding and complying
with the law”, it follows that the misapplication of that authority will deprive
people of a fair and equal chance to understand and conform with the law,
and so prove unjust. This is a defect of form.

• Misappropriation of “common stock”. If some element of the common stock

- the resources and goods of the community - is appropriated by or on behalf
of some party not reasonably entitled to it while denying that resource or
good to others, that may be an instance of substantive injustice.

23 ibid, pp 352ff

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It is perhaps noteworthy that Finnis makes a particular effort to characterise the

first three forms of injustice as being thinkable as forms of distributive injustice -
that is, of the allocation of power, opportunities, or goods being out of balance.

Finnis considers distributive justice in more depth in §VII.3 of Natural Law

and Natural Rights, and his emphasis of practical reasonableness gives us
certain clues about institutions such as private property. This is because to
have authority over one’s life - to formulate projects and have a reasonable
chance of realising them - implies at least substantial control over the things in
one’s life:

The good of personal autonomy in community suggests that the opportunity of

exercising some form of private ownership, including of means of production, is
in most times and places a requirement of justice24.

Moreover, he adds, there is a second justification for the institution of private

property, which rests on an empirical claim that the common stock is more
efficiently and fruitfully managed, and therefore better able to feed back into
the public good, when it is in private hands. There is something undeniably
Thatcherite about this set of claims; but the upshot is that, since (and if) the
purpose of law is to serve the human good, it ought to protect (and favour)
private ownership.

This claim is further reflected in what Finnis terms the “principle of

subsidiarity”:

It is a fundamental aspect of general justice that common enterprises should be

regarded, and practically conducted, not as ends in themselves but as means of
assistance, as ways of helping individuals to ‘help themselves’ or, more

24 ibid, p 169; modified

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precisely, to constitute themselves. And in all those fields of activity, where

individuals, or families, or other relatively small groups, can help themselves by
their own private efforts and initiatives without thereby injuring the common
good, they are entitled to justice to be allowed to do so, and it is unjust to
require them to sacrifice their private initiative by demanding instead that they
participate instead in a public enterprise; it remains unjust even if the material
dividend they receive from the public enterprise is as great as or even somewhat
greater than the material product of their own private effort would have been.25

That is to say: the human good is the aim of law; the human good is located in
the community, and therefore the law will have an indirect interest in the good
of the community insofar as that it serves the good of the humans therein. It
does not follow from this, though, that the good of the community, or even of
the aggregate of its members, will displace the good of the individual: Finnis is
resolutely anti-utilitarian on this front, and will forego certain goods if securing
them violates the demands of justice.

Explain the principle of subsidiarity in your own words. Why is it

important for Finnis? Is he correct? Explain your answer.
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25 ibid, modified; emphasis mine

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LEX INIUSTA NON LEX EST?

If law is directed at maintaining the common good for the sake of human
flourishing, and justice is a characteristic of laws that are effective, we are
presumably able to spot and say something about laws that either do not serve
justice (perhaps because they are badly drafted, or because the circumstances
that obtained when they were drafted no longer obtain), or - perhaps more
worryingly - that are more positively unjust. How should we think about unjust
laws?

As we’ve seen, there’s an element of the natural law tradition that is

dubious of the very idea of an unjust law. Since naturalists deny the separation
thesis, they are not compelled to admit that a law is valid irrespective of its
merits; and so the way is open to deny that an unjust law can be a valid law -
which, to all intents and purposes, means that it’s not a law at all. On this point,
cast your mind back to the quotation from Cicero in the first section of this
course, or - with a few more argumentative steps being required - to Fuller.

There’s a slight difference between saying that an unjust law is not a law
at all, and saying that an unjust law has no power to compel obedience; but it’s a
difference that we can afford to gloss over here as we ask whether we have a
(legal) obligation to obey unjust laws. If a law is authoritative by dint of its moral
content, that suggests that it loses that authority in line and with and in
proportion to its moral flaws. Finnis concedes that it’s tempting to think that we
don’t have an obligation to obey unjust laws. For one thing, he states, rulers do
not have any right to obedience: what they do have is

the authority to give directions and make laws that are morally obligatory and
that they have the responsibility of enforcing. They have this authority for the

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sake of the common good (the needs of which can also, however, make
authoritative the opinions - as in custom - or stipulations of people who have no
authority). Therefore, if they use their authority to make stipulations against the
common good, or against any of the basic principles of practical
reasonableness, any such stipulation altogether lacks the authority it would
otherwise have by virtue of being theirs. More precisely, stipulations made for
partisan advantage, or (without emergency justification) in excess of legally
defined authority or imposing inequitable burdens on their subjects or directing
the doing of things that should never be done, simply fail, of themselves, to
create any moral obligation whatever. […]

For the purpose of assessing one’s legal obligations in the moral sense, one is
entitled to discount laws that are ‘unjust’ in any of the ways mentioned. Such
laws lack the moral authority that in other cases comes simply from their origin,
‘pedigree’, or formal source. In this way, then, lex injusta non est lex [unjust law
is not law] and virtutem obligandi non habet (does not have the authority to
bind), whether or not it is ‘legally valid’ and ‘legally obligatory’ in the restricted
sense that it (i) emanates from a legally authorized source, (ii) will in fact be
enforced by courts and/ or other officials, and/ or (iii) is commonly spoken of as
a law like other laws.26

Finnis has his sights trained on both the separation thesis and its flip-side, the
sources thesis. Moral content is important for assessing the validity of a law;
who happens to have posited it isn’t.

Taken in this way, this may appear to give us a way to talk about rights to
disobey odious regimes - or, perhaps, a way not to have to talk about questions
of our obligations to obey them, on the basis that the command no obedience
in any moral or legal sense anyway. A regime such as that in Nazi Germany or

26 ibid, pp 359-61. Finnis provides the translation of virtutem obligandi non habet; that of lex
iniusta non est lex is my interpolation.

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the USSR or Chile under Pinochet or Libya under Gaddafi or… or… or… may
simply lack the authority to issue binding rules to the extent that it fails to serve
the common good. Telling people that they must - say - sign up for military
service because they’ll be imprisoned if they don’t would still have force; telling
them that they must because that’s the law wouldn’t.

Does this not leave the way open to anarchy, as individuals simply decide
which laws are and are not to their liking and treat them accordingly? And if
Smith is seen by Jones to be acting in a way that violates the law, might that
threaten the integrity of the legal system as a whole? That in itself might have
undesirable consequences for the common good, and for the good of the
individuals who make up the community. This would give us a moral reason to
comply with even unjust laws. And what, for that matter, about the laws that an
odious regime might pass that are not themselves odious? For example:
suppose the Nazis had, for reasons of public health, banned smoking in
enclosed public spaces, and had put in place perfectly reasonable civil
penalties. Would we want to say that that law had no force simply because of
who had passed it? Finally, when Finnis says that certain laws may be
discounted, we would plausibly be entitled to ask questions about the rate of
discount. Does it mean that they lose force entirely, or just some of it? If just
some, how much? There is, predictably, a good deal more to be said.

For one thing, though a law may be unjust insofar as that it places an
unjust burden on some, it will not follow that it is unduly burdensome on all. So
even if those who are unjustly burdened have an exemption from being obliged
by that law, the same will not be true of those not so burdened. For another,
and more generally, Finnis wants to say that there is an all-things-considered,
though rebuttable, obligation to abide by the law not because abiding by the

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law is a good in its own right, but because it is desirable not to undermine the
legal system. That is to say, we have a moral obligation to obey the law to the
degree necessary to avoid bringing the law into contempt.

So, if an unjust stipulation is, in fact, homogeneous with other laws in its formal
sense, in its reception by courts and officials, and in its common acceptance,
the good citizen may (not always) be morally required to conform to that
stipulation to the extent necessary to avoid weakening ‘the law’, the legal
system (of rules, institutions, and dispositions) as a whole.27

But even this is not the whole story!

Does this point not swing the pendulum right back - from apparently
opening the door to anarchy as people decide which laws to obey ad hoc, to
narrowing the scope for any resistance whatsoever?

Probably not. Finnis’s claim was never that unjust laws undermine the
legal edifice entirely - although it is possible that they might - and so resistance
to those laws is only ever going to be limited in scope. It is one thing to refuse
to pay ones taxes when there is a reasonable, publicly-scrutable, and widely-
accepted argument to be made that they are unjustly onerous; but it is quite
another to riot on the matter, as happened in the Poll Tax riots of 1990. Indeed,
it may be that if one refuses to pay a tax that is (by stipulation) unjust, one
should be willing to accept the lawful penalty for that, on the basis that it is the
particular law that is unjust rather than the legal system as a whole.

There is a kind of quid pro quo in play here, too, in that insofar as that it is
the job of those in authority to serve the human good by means of law and the

27 ibid, pp 361-2

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rule of law, they will have a reason based in the rule of law to correct for
injustices - although obedience to the law would still be required in the interim:

The rulers still have the responsibility of repealing rather than enforcing their
unjust law, and in this sense have no right that it should be conformed to. But
the citizen, or official, may meanwhile have the diminished, collateral, and in an
important sense extra-legal obligation to obey it.28

So, for example, imagine that you think - as Finnis does - that abortion is a
serious wrong. In that case, you would be able to say that the government has a
duty to change a law that permits it. But suppose that you think that it should
be legal when it happens not to be: maybe you’re Finnisian enough to appeal to
the basic good of life, but think that it inheres in the woman, but not in the
embryo. Here, too, you might think that the state has a duty to change the law;
but Finnis’s point would be that for as long as abortion is illegal, women would
have an obligation not to seek abortions, for the sake of the integrity of the law
as a whole.

In October 2019, about 10 days after the Miller ruling on the prorogation of
Parliament was handed down in the Supreme Court, and in the wake of
protests from the environmental activist group Extinction Rebellion, the
comedian David Shneider made a joke on Twitter about the latter’s campaigns,
and the parallel with the government’s approach to Brexit:

David Shneider @davidschneider

Extinction Rebellion protestors. If you’re told you’re breaking the law, simply do
what the government does and say you respect the law but you believe that it’s
wrong and carry on. (https://twitter.com/davidschneider/status/
1181341549461999617)

28 ibid

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What does this have to do with Finnis?

Well, consider this response from the philosopher Steve Cooke:

Grumpy Philosopher @SteveCooke

This is an amusing joke, but it also gets at a core element of the concept of
civil disobedience, which involves conscientious breach of the law in ways
that show respect for the principle of the rule of law. That’s what separates it
from militancy or revolutionary acts.

Protestors show respect for the rule of law by demonstrating that they do not
place themselves above fellow citizens, by communicating their reasons, by
showing restraint in their actions, through the language they use, etc.
Sometimes also by accepting (reasonable) punishment. (https://twitter.com/
SteveCooke/status/1181485857917853697; https://twitter.com/SteveCooke/
status/1181486540721184768)

Because he is talking about actively resisting laws that rulers might have a
moral obligation to change, Cooke goes further than Finnis, and Finnis would
therefore almost certainly reject Cooke’s argument here. But it’s clearly a
related point that he’s making, and what matters for our purposes is that it
might tell us something about how one can have resistance to particular laws
without thereby endorsing resistance to the fundamental concept of law, and
the rule of law, as something that is necessary in
order to preserve the good of the community.

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(And this tells us something important about jurisprudential thought, too,

which is that it’s non-partisan when done well. Finnis may be fairly right-wing;
but Cooke certainly isn’t. Still, there’s scope to accept or be persuaded by a
particular way of thinking about law and obligation that could be common.
Equally, one could think that Finnis is on to something when it comes to
human goods without having to endorse each of the conclusions he draws –
eg about sexuality.)

A real-world example of how to reconcile

breaking the law with a more general respect for
the rule of law can perhaps be seen in the case of
USA v Manning, in which Bradley (subsequently
known as Chelsea) Manning was charged with
passing sensitive data about US military
operations to Wikileaks, in violation of
the Espionage Act. Manning was
found guilty and sentenced to 35
years confinement, demotion,
forfeiture of pay and allowances, and
dishonourable discharge.

Whether the sentence was just or not is not something about which we
can talk here. What matters is that it was in accordance with a law passed by
the relevant recognised authorities, and even if that law happened to be unjust,
that does not undermine either the idea that the rule of law broadly understood
was in place in the case, or that the legal system broadly served the common
good. As such, it is not unreasonable to infer that, whatever the rights and
wrongs of having leaked the information in its own terms, there was

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nevertheless a moral reason to abide by the law qua law. Implicitly, this would
require a willingness to accept whatever legal consequences there were, again
as a part of respect for the law and for the rule of law.

Writing on his blog, the Swedish philosopher Christian Munthe presented

a line of argument that doesn’t name Finnis, but recognisably has Finnisian
characteristics:

Commentators are very varied in their responses, but many on the side of things
that I spontaneously sympathize with are making the point that the sentence is
overly harsh compared to (a) US soldiers convicted for war crimes, or (b) other
people convicted for leaking military or otherwise classified info to the press.

I'm on the record as stating that Manning's actions were not only morally
permissible, they were in fact required and admirable and have equally
expressed my horror at the infamous video of a US helicopter crew laughing and
joyfully gunning down civilians in Iraq. But at the same time I would like to insist
on a distinction being made here between normative comments and factual
ones. Moreover, among the normative comments, one must distinguish
between those pertaining to the single case and those pertaining to the
institutional order handling said single case (in this case the US system of
criminal justice).

So, normative comments are about, simply, whether or not the sentence is a
good thing. Given the moral permissibility of Manning's action to leak the
material she did, the answer is simple: no, of course not! But this is mainly
because from this same point of view, there should have been no conviction, no
court proceedings and no arrest in the first place.

At the same time, this attitude is inconsistent with viewing Manning's actions as
morally justifiable civil disobedience (since that assumes unlawfulness and that
the offender takes the legal consequences). This latter analysis, which I support,

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brings into the picture the existence of a system of law that there is a value in
upholding and allow to rule. Now, it may very well be that such rule of law is
unsystematic in the US context, and that, e.g., president Obama has been
hypocritical when condemning Manning's action more harshly than those of,
e.g. Daniel Ellsberg, who leaked the infamous pentagon papers. However, that
does not justify undermining rule of law even more. It is quite clear that
Manning committed criminal acts when leaking, no matter how morally justified
these leaks were. It may very well be that the system of law defining these
crimes is perverted in various ways, for instance in that it lets US soldiers who
commit heinous war crimes (or political leaders who unlawfully order entire
wars, for that matter) off the hook much too easily, but that is merely an
argument in favour of harsher sentences in those cases (in the political case,
equality before the law and due process in holding politicians legally
accountable on the same condition as anyone else), not acquittal, amnesty or a
milder sentence in Manning's case. Moreover, this is still a system where
everyone, Manning included, had the possibility to understand the legal
standing of her actions and what she could to expect in consequence. Much,
much worse would be a system were law is just a cheap show, and court
verdicts vary according to the momentary whims of those that happen to be in
power to enforce whatever preferences they happen to entertain at the
moment.29

Again, the idea here is that even if particular aspects of the law are unjust and
inequitable, all that means is that there is a moral reason for lawgivers to modify
them; it is compatible with their being unjust at the moment to think that they
should nevertheless be obeyed and adhered to for the sake of preserving the
wider rule of law.

29Munthe, C, “My View of Chelsea (FKA Bradley) Manning's Sentence”, via http://
philosophicalcomment.blogspot.co.uk/2013/08/my-view-of-bradley-mannings-sentence.html;
modified

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On the other hand, we should not infer from this that this kind of thinking
is necessarily Finnisian, or that Munthe is a Finnisian. Ronald Dworkin makes a
similar claim in Taking Rights Seriously, for example.30 We shall have a lot more
to say about Dworkin - albeit not on this topic - in the next section.

Do you think that Finnis account of the authority of law and the
obligation to be bound even by unjust law is correct? Why? Has
your mind changed over the past couple of sections? Explain your
position.
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WHERE ARE THE RIGHTS?

In his rehearsal of Finnis’s arguments, Nigel Simmonds raises an interesting
question: given the title of Finnis’s book, where (and what) are the natural rights
in play?

Here again we must appeal to the basic goods and the characteristics of
practical reason. The seventh of the nine characteristics of practical reason was
that it should convey a respect for the basic value in all acts. This Finnis glosses
as an imperative “not [to] choose to do any act which of itself does nothing but

30 Dworkin, R, Taking Rights Seriously (London: Bloomsbury, 2013), pp 225ff

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damage or impede realization or participation in of any one or more of the basic

forms of human good”31. A utilitarian might see this as allowing actions that are
intended to create more good, even if they happen to impede certain basic
goods for some people; but Finnis had rejected this kind of reasoning as
arbitrary in §V.6, when he considered the relevance, or lack of relevance, of
consequences in practical reason. And so, on his account,

if consequentialist reasoning were reasonable, one might sometimes reasonably

kill some innocent person to save the lives of some hostages. But
consequentialist reasoning is arbitrary and senseless, not just in one respect but
in many. So we are left with the fact that such a killing is an act which if itself
does nothing but damage the basic value of life.32

(That there is any number of consequentialists and utilitarians33 who would deny
Finnis’s claim about consequentialism being senseless and arbitrary is
something we can put aside for the time being: our concern is with seeing what
Finnis means, and decisions about whether he ought to mean it may come
later.)

The upshot of this appeal to fundamental goods and basic values is that
there is a standard by which we ought to treat all other persons, and below
which it is impermissible (because contrary to the good of practical reason) to
fall. This amounts to saying that there is a set of rights:

So we need not hesitate to say that there are absolute human rights. For the
seventh of the requirements of practical reasonableness that I identified in V.7 is

31 Finnis, op cit, p 118

32 ibid, p 119

33For present purposes, we can treat “consequentialist” and “utilitarian” as meaning more or
less the same.

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this: that is always unreasonable to choose directly against any basic value,
whether in oneself or in one’s fellow human beings. And the basic values are not
mere abstractions; they are aspects of the real well-being of flesh-and-blood
individuals. Correlative to the exceptionless duties entailed by this requirement
are, therefore, exceptionless or absolute human claim-rights - most obviously,
the right not to have one’s life taken directly as a means to any further end; but
also the right not to be positively lied to in any situation in which factual
communication is reasonably expected; the related right not to be condemned
on knowingly false charges; the right not to be deprived, or required to deprive
oneself, of one’s procreative capacity; and the right to be taken into respectful
consideration in any assessment of what the common good requires.34

In other words, there are norms of behaviour that spring from practical
reasonableness, and rights are a consequence of this - rights, that is, that are
not created by law, but that any functioning legal system ought to recognise
and to protect as a part of its function as a legal system; these are rights that we
have simply by virtue of being human, and as a part of the human good.

Is there such a thing as a fundamental right? Does Finnis offer a

convincing account of how there might be? Explain your position.
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34 ibid, p 225; modified.

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LAW AND MORALITY

So we have quite a complex picture, and a complex way of thinking about the
relationship between law and morality. Law, for Finnis, is fundamentally linked
to morality, because law’s function is to preserve and secure the human good:
that is fundamentally a moralised concern, and it provides a way to
conceptualise things like justice and injustice, and the nature and extend of our
obligations to and under the law.

SUGGESTED READING
Finnis, J, Natural Law and Natural Rights (Oxford: Oxford UP, 2011)

Finnis, J, “Law, Morality, and ‘Sexual Orientation’”, Notre Dame Law Review 69[5]
(1993): 1049-1076

Simmonds, N, Central Issues (London: Sweet and Maxwell, 2018), ch. 4

Munthe, C, “My View of Chelsea (FKA Bradley) Manning's Sentence”, via http://
philosophicalcomment.blogspot.co.uk/2013/08/my-view-of-bradley-mannings-
sentence.html

COMING NEXT…
Ronald Dworkin’s move from positivism to “law as integrity”.

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